Court filing
Post-Hearing Brief as to Carl Delano Torjagbo filed by Carl Delano Torjagbo re 44 MOTION… — USA v. Torjagbo (Dkt. 108)
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2024-08-13 |
U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 108 · 2024-08-13 · Docket on CourtListener
Summary
A post-hearing brief in support of a motion to suppress statements, filed August 13, 2024 as Document 108 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 follows an evidentiary hearing on the motion and amended motion to suppress at docs. 44 and 88. The brief recounts the May 12, 2022 indictment charging seven offenses tied to a Payroll Protection Program loan obtained for Kremkov Industries, including bank fraud under 18 U.S.C. §§ 1344 and 2 and money laundering counts under 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 and 18 U.S.C. §§ 1957 and 2. It sets out questioning that followed the defendant's arrest and argues his Miranda waiver was not knowing, intelligent and voluntary. The 24-page brief asks the court to suppress those statements and any evidence derived from them.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA
)
)
vs.
)
CRIMINAL ACTION NO.
) 1:22-CR-171-MLB-RDC
CARL DELANO TORJAGBO
)
)
POST-HEARING BRIEF IN SUPPORT OF MOTION
TO SUPPRESS STATEMENTS
COMES NOW the Defendant, CARL TORJAGBO, by and through his
undersigned counsel, and files this post-hearing brief in support of his motion and
amended to suppress statements, docs. 44 and 88. Mr. Torjagbo states the
following.
Facts
Carl Torjagbo applied for and obtained a Payroll Protection Program (PPP)
loan on behalf of Kremkov Industries. (T. 24; Def. Exh. 1 at 06:06-06:15). On
May 12, 2022, the instant federal indictment was returned against Mr. Torjagbo.
(Doc. 1). The indictment charges Mr. Torjagbo with seven offenses relating to
acquisition of the loan and alleged use of the proceeds: one count of bank fraud in
violation of 18 U.S.C. §§ 1344 and 2; three counts of concealment money
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laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2; and three counts of
transactional money laundering in violation of 18 U.S.C. §§ 1957 and 2. (Doc. 1).
The bank fraud count alleges that Mr. Torjagbo provided materially false
information while applying for the PPP loan that he obtained for Kremkov
Industries. (Doc. 1 at 2-4). In part, that count alleges, “On the application,
Defendant Torjagbo stated that Kremkov Industries had 493 employees. That was
not true.” (Doc. 1 at 3). Further, that count alleges, “In support of the PPP loan
application, Defendant Torjagbo submitted fraudulent documents to Chase Bank,
including . . . fake reports that listed the names and make-believe payroll
information of 493 people who allegedly worked for Kremkov Industries.” (Doc. 1
at 4).
On May 12, 2022, two days after the indictment was returned, a team of
Federal Bureau of Investigation (FBI) agents sought to execute an arrest warrant
for Mr. Torjagbo that was issued in connection with the indictment. (T. 7).1 The
agents found Mr. Torjagbo at a location in Dallas, Georgia. (T. 8). According to
FBI Agent Marissa Pressley, agents had set a meeting with Mr. Torjagbo. (T. 7).
The agents planned to arrest him. (T. 7).
1 “T.” is a reference to the transcript of the evidentiary hearing conducted on June
5, 2004 on Mr. Torjagbo’s motion to suppress statements.
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Approximately ten agents went to the location in three or four vehicles. (T.
24-26). The agents were wearing bullet proof vests with FBI placards. (T. 9).
As they observed Mr. Torjagbo walking across the parking lot, the ten agents
surrounded Mr. Torjagbo with their vehicles, quickly exited their vehicles with
their guns drawn, pointed their guns at Mr. Torjagbo, and identified themselves as
FBI agents. (T. 9, 24-27). At least one agent yelled commands to Mr. Torjagbo,
such as “show your hands” or “get on the ground.” (T. 27-28). Mr. Torjagbo
complied. (T. 28). He got on the ground, and the agents arrested him. (T. 26, 28).
They placed Mr. Torjagbo in handcuffs behind his back and placed him in Special
Agent Scott Caruana’s Government vehicle. (T. 10-11, 24, 26). Once Mr.
Torjagbo was secured in the rear of the vehicle, the agents handcuffed Mr.
Torjagbo’s hands in front of his body. (T. 11).
While still at the Dallas location, FBI Agents Caruana and Pressley
questioned Mr. Torjagbo while he sat in the vehicle. (T. 11-16, 28-29). The
agents audio-recorded the interrogation.2 (T. 14; Gov. Exh. 2; Def. Exh. 1).
Agent Caruana read Miranda warnings to Mr. Torjagbo at the inception of the
2 Although the questioning was recorded, it is apparent that some amount of
discussion leading up to the interrogation, such as the possibility of benefitting by
cooperating with the agents, was not recorded. See (T. 31-32; see also Def. Exh. 1
at 17:22-18:04).
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recording. (T. 12; Def. Exh. 1 at 00:23-01:45). Mr. Torjagbo signed an advice of
rights form. (T. 11; Gov. Exh. 1). The questioning addressed a range of topics
pertaining to Mr. Torjagbo, the PPP loan application, the formation and operation
of Kremkov Industries, Mr. Torjagbo’s expenditures after obtaining the PPP loan,
the formation of FlyingJack Freight and Logistics, activities conducted by and
through FlyingJack Freight and Logistics, an income tax return that Mr. Torjagbo
filed, and items of property that the Government was seizing. See (T. 35; Def. Exh.
1).
During the questioning, Agent Caruana asked Mr. Torjagbo to tell him how
many employees Kremkov Industries currently had. (Def. Exh. 1 at 06:22-06:26).
Mr. Torjagbo said that at the time the company’s activities were on halt because
most of its business was done in Africa, where its mining activities were
conducted. (Def. Exh. 1 at 06:26-06:44). Thus, Mr. Torjagbo said, he had
rechanneled his efforts into transportation. (Def. Exh. 1 at 06:44-06:50). Mr.
Torjagbo said that most of the company’s employees were in Africa, where its
mining activities were operated. (Def. Exh. 1 at 06:50-07:10).
Shortly afterward, Agent Caruana asked Mr. Torjagbo about how many
employees he had in 2020 and 2021. (Def. Exh. 1 at 07:40-07:48). Mr. Torjagbo
said about fifty. (Def. Exh. 1 at 07:48-07:53). Agent Caruana asked Mr.
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Torjagbo, “What was the maximum number of employees that you’ve ever had?”
(Def. Exh. 1 at 08:00-08:04). Mr. Torjagbo said that it was a high turnover and
that he did not know off the top of his head. (Def. Exh. 1 at 08:04-08:11). Agent
Caruana then told Mr. Torjagbo to take a guess. (Def. Exh. 1 at 08:11-08:13).
Mr. Torjagbo said that he honestly could not answer the question, as he did not
know. (Def. Exh. 1 at 08:13-08:24). Agent Caruana again insisted that Mr.
Torjagbo take a guess, and Mr. Torjagbo said again that he did not know off the
top of his head because there was a high turnover. (Def. Exh. 1 at 08:24-08:47).
Agent Caruana then told Mr. Torjagbo, “Just take a guess. I’m not going to lock
you into it. Just a rough guesstimate.” (Def. Exh. 1 at 08:47-08:51). Mr.
Torjagbo replied, “A rough guesstimate, maybe 50, 60.” (Def. Exh. 1 at 08:51-
08:56).
Agent Caruana next asked Mr. Torjagbo about how much annually or
quarterly he paid his employees. (Def. Exh. 1 at 08:57-09:04). Mr. Torjagbo said
those were hard figures and he did not know off the top of his head; so, honestly he
did not want to answer that question. (Def. Exh. 1 at 08:57-09:09). Agent
Caruana said, “Are you sure you want to . . . tell me this stuff. Because it’s not
really going to help you.” (Def. Exh. 1 at 09:09-09:16). Mr. Torjagbo replied, “I
know that. But I don’t [want] to tell you something which is wrong and then . . .
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it’ll appear as if I’m . . . deceiving you or something.” (Def. Exh. 1 at 09:16-
09:23). Agent Caruana accused Mr. Torjagbo of telling him “bullshit.” (Def.
Exh. 1 at 09:47-10:00). Mr. Torjagbo told Agent Caruana that he was being
honest with Agent Caruana to the best of his abilities. (Def. Exh. 1 at 10:00-10:11).
Later, during the interrogation, Agent Caruana told Mr. Torjagbo with
regard to cooperating and truthfully answering questions that he had been clear to
Mr. Torjagbo and explained to him how he could help himself in the federal
system. (Def. Exh. at 17:22-17:52). He added, “And I guarantee you, you speak
to any attorney, an attorney gets appointed to you . . . when you go through these
proceedings, or you hire your own attorney . . . they will tell you the same thing.
And I don’t want you to sit back there later on and say, ‘Damn, he told me so.’”
(Def. Exh. 1 at 17:52-18:08). Afterward, Mr. Torjagbo answered additional
questions from Agents Caruana and Pressley, and he signed a form consenting to
the agents using his key fob to enter his home garage and seize a BMW he owned.
Argument and Citation of Authorities
I.
Mr. Torjagbo’s statements regarding the maximum number of employees
Kremkov Industries had should be suppressed, because Mr. Torjagbo did not
knowingly, intelligently and voluntarily waive his Miranda rights.
The Fifth Amendment to the United States Constitution provides that “[n]o
person . . . shall be compelled in any criminal case to be a witness against himself.”
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U.S. Const., Amend. V; United States v. Barry, 479 Fed. Appx. 297, 298 (11th Cir.
2012). In light of the inherently compelling pressures of the custodial setting, the
Supreme Court held in Miranda v . Arizona, 384 U.S. 436, 467-473 (1966), that
before a person in custody is interrogated, he must first be informed in clear and
unequivocal terms that he has the right to remain silent, that anything he says can
and will be used against him in court, that he has the right to consult with an
attorney, that he has the right to have an attorney present with him during any
questioning, and that an attorney will be appointed to represent him if he is unable
to pay for one. Minnesota v. Murphy, 104 S.Ct. 1136, 1143 (1984); accord, J.D.B.
v. North Carolina, 131 S.Ct. 2394, 2401 (2011). A person is in “custody” when
he has been formally arrested or restrained to the degree associated with formal
arrest. J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011). For purposes of
Miranda, “interrogation” includes any words or actions on the part of the police
that are reasonably likely to elicit an incriminating response. Rhode Island v. Innis,
446 U.S. 291, 301 (1980).
“Before the Government may introduce a suspect’s uncounselled statement
made during custodial interrogation, it must show that the suspect made a
voluntary, knowing and intelligent waiver of his privilege against self-
incrimination and his right to counsel.” U.S. v. Beale, 921 F.2d 1412, 1435 (11th
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Cir. 1991) (citing Miranda, 384 U.S. at 475). The determination of whether a
defendant has rendered a knowing, intelligent, and voluntary waiver of his Miranda
rights involves two distinct dimensions:
First, the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception. Second, the waiver must have
been made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it. Only
if the totality of the circumstances surrounding the interrogation
reveals both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the Miranda rights
have been waived.
United States v. Farley, 607 F.3d 1294, 1326 (11th Cir. 2010) (quoting Moran v.
Burbine, 475 U.S. 412, 421 (1986)).
“Voluntariness in the context of Miranda waiver means the same thing as
voluntariness in the due process context, i.e., freedom from official coercion.”
Miller, supra at 1538. Thus, this portion of the inquiry focuses on whether there
was police over-reaching or coercion associated with inducing the defendant to
make a statement or answer questions. See Bradley v. Nagle, 212 F.3d 559, 566
(11th Cir. 2000).
The Government’s burden in demonstrating that a waiver of Miranda rights
was knowing, intelligent, and voluntary is great. North Carolina v. Butler, 441 U.S.
369, 373 (1979); see also Farley, 607 F.3d at 1326. Ultimately, the Court must
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indulge every reasonable presumption against waiver of fundamental constitutional
rights and cannot presume acquiescence in the loss of fundamental rights.
Colorado v. Spring, 479 U.S. 564, 581-82 (1987), (Marshall, J., dissenting)
(citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Brewer v. Williams, 430 U.S.
387, 404 (1977)).
Deception by police officers is prohibited where it “goes directly to the
nature of the suspect’s rights and the consequences of waiving them.” Farley, 607
F.3d 1294, 1329 (11th Cir. 2010) (citing Hart v. Attorney Gen. of the State of Fla.,
323 F.3d 884, 894-95 (11th Cir. 2003)). Hart is a seminal case on this topic in
this circuit. In that case, law enforcement officers engaged in several deceptive
acts during or in connection with interrogating Hart. Two deceptive acts, in
particular, were found to be constitutionally significant to the validity of Hart’s
waiver of Miranda rights. In the subsequent case of Farley, the Eleventh Circuit
explained:
Hart asked the detective about the ‘pros and cons’ of hiring a lawyer,
which indicated that he ‘did not fully understand’ his rights and was
asking for clarification of them. Id. at 894. In response, the detective
told him that the ‘disadvantage’ of having a lawyer was that the
lawyer would tell him not to answer incriminating questions. Id. That
statement was misleading because the whole point of having a lawyer
present during an interrogation is to protect the suspect's privilege
against self-incrimination. Id. The detective also told Hart that
‘honesty wouldn't hurt him.’ Id. That was misleading because it
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simply was not true — honesty can doom a guilty man — and it
contradicted the warning required by Miranda that anything a suspect
says can be used against him in court. Id. As a result of the detective's
deception, which went to the heart of the Miranda warnings
themselves, we concluded that Hart ‘did not truly understand the
nature of his right against self-incrimination or the consequences that
would result from waiving it,’ meaning that his waiver was not
voluntary. Id. at 895.
Farley, 607 F.3d at 1329.
The Hart court determined that there was no significant difference between
the facts in that case and those in United States v. Beale, 921 F.2d 1421, 1434-
1435 (11th Cir. 1991), where the Eleventh Circuit held that the trial court had erred
in admitting at trial the defendant’s statements to FBI agents. Beale had signed a
Miranda waiver form only after the FBI agents had told him that signing the form
would not hurt him. Id. at 1435. The Eleventh Circuit observed in Beale, “It
appears that by telling LAVIN that signing the waiver would not hurt him the
agents contradicted the Miranda warning that a defendant’s statements can be used
against the defendant in court, thereby misleading LAVIN concerning the
consequences of relinquishing his right to remain silent.” Id.
United States v. Castor, 598 Fed. Appx. 700 (11th Cir. 2015), provides
another pertinent example. There, the defendant’s waiver of Miranda rights and
subsequent admissions were deemed involuntary where the police officer had told
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the defendant he could not charge him for additional drugs. 598 Fed. Appx. at 703-
704. The Eleventh Circuit stated, “Castor’s decision to waive his rights and
confess was the product of [the officer’s] deception, and Castor did not truly
understand the nature of his right against self-incrimination or the consequences of
waiving it.” Id. at 704.
In United States v. Harris, 72 F.Supp.3d 1332, 1336-1338 (M.D. Ga. 2014),
the District Court for the Middle District of Georgia suppressed the defendant’s
statements made to law enforcement officers where one of the officers had
acknowledged and agreed with the defendant that his statements would be “off the
record.” Law enforcement officers and the defendant’s probation officer had
approached the defendant Harris at his home based on suspicion of marijuana
production. Id. at 1335. The district court found that after Harris received a
Miranda warning, the following occurred:
During his conversation with Agent Luke, Defendant said ‘all of the
things I'm telling you are probably going to hurt me,’ and Agent Reed
responded ‘yeah, they probably will.’ Agent Luke went on to say ‘you
don't have to talk to me.’ After Agent Luke reiterated Defendant did
not have to confer with him, Defendant declared he would speak to
Agent Luke ‘off the record’ about marijuana production. Agent Luke
responded ‘sure’, and when asked again by Defendant for
confirmation their conversation was ‘off the record’, Agent Luke
stated ‘okay, off the record.’
Id. at 1335. The defendant Harris proceeded to make additional
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incriminating statements, including some that led to the discovery of
firearms for which he was prosecuted federally. Id. at 1335-1336. At a
suppression hearing, Agent Luke testified that there was “no such thing as
off the record” and that in his opinion it is okay to lie when interrogating
individuals in custody. Id. at 1335.
The district court held that Harris’s statements after the
acknowledgement and agreement that their statements were “off the record”
were involuntarily rendered. Id. at 1337. First, the court stated,
“[I]ntentionally false representations directly contradicting a Miranda
warning are never appropriate.” Id. Moreover, when law enforcement
officers make statements to the defendant that are clearly inconsistent with
the intent of Miranda, ensuing statements by the defendants are considered
involuntary under Miranda and its progeny. Id.
The District Court for the Southern District of Alabama noted a
similar proposition in United States v. LaForgia, Unpublished, 2012 WL
1869035 (S.D. Ala. May 22, 2012). The court noted that a false promise,
such as “whatever you say will just be between us”, is deceptive regarding
the nature of the defendant’s rights and the consequences of abandoning
them and will generally trigger suppression. 2012 WL 1869035, *4.
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In this case, Agent Caruana coerced Mr. Torjagbo into making statements
regarding the maximum number of employees he had at Kremkov Industries by
telling Mr. Torjagbo that he would not lock Mr. Torjagbo into the answer. At the
time of the questioning, Mr. Torjagbo was in custody, and his responses were
being given in response to interrogation. Thus, Miranda warnings were required.
Miranda and the Fifth Amendment require not simply that Miranda warnings be
given but that the spirit and intent of the warnings be followed. Agent Caruana
contradicted the element of the Miranda warnings that the defendant has a right to
remain silent. By telling Mr. Torjagbo that he would not lock Mr. Torjagbo into
his answer, Agent Caruana essentially told Mr. Torjagbo that he would not hold his
answer against him, which is not true. That contradicts the element of the
Miranda warning that anything the suspect says during the custodial interrogation
can and will be used against him in court.
Agent Caruana’s deception goes to the heart of Mr. Torjagbo’s right to
remain silent. The deception undermined not only Mr. Torjagbo’s understanding
of his right to remain silent. It also undermined his understanding of the
consequence of waiving the right to remain silent. Mr. Torjagbo clearly had
reluctance to answer the question of the maximum number of employees he had at
Kremkov Industries. He stated multiple times that he was unsure and did not
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want to answer the question or guess. Soon afterward, when discussing amount
of money that he paid his employees on an annual or quarterly basis, Mr. Torjagbo
said that he did not want to give answer, because he was unsure, and an incorrect
answer would make it appear that he was trying to be deceitful. The recording
suggests that Mr. Torjagbo felt similarly about the topic of the maximum number
of employees he had at Kremkov. However, on that question, Agent Caruana
deceptively coaxed Mr. Torjagbo into waiving his right to remain and responding
by telling Mr. Torjagbo that he would not lock him into his answer. However, if
the statement is introduced at trial, that is exactly what the Government will have
done — lock him into his answer. That type of deception is not tolerated by the
Fifth Amendment. Mr. Torjagbo’s statement was the product of deception, and
the waiver of Miranda rights from which it ensued was not voluntarily, knowingly,
and intelligently rendered. Thus, the statement must be suppressed.
II.
Mr. Torjagbo’s statements regarding the maximum number of employees he
had at Kremkov Industries should be suppressed, because Mr. Torjagbo did
not voluntarily render the statements.
The Due Process Clause of the Fifth Amendment prohibits the Government
from introducing at trial involuntary statements made by the Defendant. See Lall,
607 F.3d 1277, 1285 (11th Cir. 2010); Mincey v. Arizona, 437 U.S. 385, 398
(1978) (“[A]ny criminal trial use against a defendant of his involuntary statement
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is a denial of due process of law.”) (emphasis removed). If the voluntariness of a
statement is challenged, the Court must find that it was voluntarily made before it
may be introduced. Jackson v. Denno, 378 U.S. 368, 378 (1964). The Eleventh
Circuit has held:
The standard for evaluating the voluntariness of a confession is
whether a person made an independent and informed choice of his
own free will, possessing the capability to do so, his will not being
overborne by the pressures and circumstances swirling around him.
Voluntariness depends on the totality of the circumstances and must
be evaluated on a case-by-case basis.
United States v. Rivera, 372 Fed. Appx. 958, *4 (11th Cir. 2010) (quoting United
States v. Castaneda–Castaneda, 729 F.2d 1360, 1363 (11th Cir.1984)). This
totality of the circumstances test directs the Court to determine whether a
defendant's statement was the product of “an essentially free and unconstrained
choice.” Hubbard v. Haley, 317 F.3d 1245, 1252 (11th Cir. 2003). The goal is to
assess whether the police over-reached or coerced the defendant, considering the
totality of the circumstances. United States v. Bernal-Benitez, 594 F.3d 1303, 1318
(11th Cir. 2010). The burden is on the Government to establish by a
preponderance of the evidence that the statement was voluntary. Lall, 607 F.3d at
1285.
“When evaluating the totality of the circumstances, a law enforcement
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officer’s promise not to use a suspect’s statement may be the most significant
factor in assessing the voluntariness of a confession.” United States v. Castor, 598
Fed. Appx. 700, 703 (11th Cir. 2015). If the government gives the defendant
false information regarding whether his statements will be used against him, the
defendant’s ability “to weigh the pros and cons of confessing and go with the
balance as it appears at that time” is seriously distorted. Lall, 607 F.3d at 1286
(citing Judge Posner’s analysis in United States v. Rutledge, 900 F.2d 1127, 1129
(7th Cir. 1990)). In that scenario, the incriminating statement must be
suppressed. Id.; see, e.g., Hopkins v. Cockrell, 325 F.3d 579, 584-85 (5th Cir.
2003) (officer assured suspect that their conversation was confidential); United
States v.Walton, 10 F.3d 1024, 1286 (3rd Cir. 1993) (officer told suspect, “You
can tell us what happened off the cuff.”).
United States v. Lall, 607 F.3d 1277, 1283-1284 (11th Cir. 2010), provides a
prominent example from this circuit. Two men broke into Lall’s home and
robbed it while Lall’s mother and two younger siblings were present. Id. at 1281.
The robbers demanded money and indicated that were interested in certain
equipment that Lall had. Id. Ultimately, the robbers left the home without that
equipment but with other items. Id. While police officers were at the home
investigating, Lall’s younger brother said that Lall “was into credit card fraud and
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making ID’s and stuff with the internet.” Id. at 1281. While the police were on
the scene investigating, Lall came home. Id. Detectives read him Miranda
warnings in the front yard. Id. Then, they took him into his bedroom, where they
questioned him. Id. Before doing so, the officers told Lall and his family that any
information he shared with the police would not be used to prosecute him. Id.
Lall proceeded to make incriminating admissions and produce equipment that he
used to commit identity theft. Id. Later, one of the detectives called Lall and told
him to the come to the police station with his father. Id. The detective told Lall’s
father that they did not need to be accompanied by a lawyer. Id. The detective
again told Lall that he was not going to bring charges against him related to the
identity fraud. Id. at 1281. At the police station, Lall was given Miranda
warnings again, and he proceeded to expound on his initial statement. Id. at 1282-
1283.
The Eleventh Circuit held that Lall’s initial statement was inadmissible
because he did not render a voluntary, knowing and intelligent waiver of his
privilege against self-incrimination. Id. at 1284. In part, the Court noted that
because of the detective’s statement before entering the bedroom that he would not
pursue charges against Lall, Lall “did not truly understand the nature of his right
against self-incrimination or the consequences that would result from waiving it.”
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Id. at 1283-1284.
The Eleventh Circuit also held that the circumstances of Lall’s confession at
the police station leaned even more heavily towards involuntariness. Id. at 1290.
The court noted that the second interview took at the police station rather than at
Lall’s house, the detective told Lall’s father they did not need to bring a lawyer
with them, and the detective had already contacted the Secret Service when he
promised non-prosecution before the police station interview. Id. at 1291.
In Castor, 598 Fed. Appx. at 701, the Eleventh Circuit held that the
defendant’s confession was involuntary, where an officer had told the defendant
beforehand that he could not charge the defendant with any additional drugs.
Following Lall and Castor, United States Magistrate Bly ruled in United States v.
Aquino-Bustos, Unpublished, 2019 WL 7840667 (N.D. Ga. Nov. 21, 2019), that
Defendant Penaloza-Bravo’s statements were not voluntarily rendered. 2019 WL
7840667, *12-*15. Penazola-Bravo and co-defendant Aquino-Bustos were both
arrested during the execution of a search warrant at a certain house. The warrant
was issued in connection with a drug investigation. While at the location, an
agent interviewed Penaloza-Bravo. The agent first read Miranda warnings to
Penaloza-Bravo. Id. at *13. Penaloza-Bravo said that he wanted a lawyer, and the
agent told him that his questions only related to Immigration and not to the
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criminal investigation. Id. During the questioning, the agent asked Penaloza-
Bravo if Acquino-Bustos called him by a certain name. Id. Penaloza-Bravo
answered affirmatively and later moved to suppress his statements as involuntary.
Id. Judge Bly agreed, holding that agent’s statement that he was questioning
Penaloza-Bustos for immigration purposes only and not for the criminal
investigation was materially indistinguishable from the promise in Lall that the
defendant’s statements would not be used against him. Id. at *14.
Mr. Torjagbo’s statements regarding the maximum number of employees he
had at Kremkov Industries were not the product of a free and unrestrained choice.
As discussed above, Agent Caruana deceptively coaxed Mr. Torjagbo into making
the statement by telling him that he would not lock him into his answer. That
promise that he would not lock Mr. Torjagbo into his answer distorted Mr.
Torjagbo’s ability to weigh the pros and cons of making a statement and going
with the balance as it appeared at that time. In particular, Agent Caruana
distorted Mr. Torjagbo’s ability to weigh the consequence of making the statement.
For all these reasons and those discussed above, Mr. Torjagbo’s statements
regarding the maximum number of employees he had at Kremkov Industries were
involuntary and should be suppressed.
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III.
Mr. Torjagbo’s statements rendered after Agent Caruana told him that any
attorney would tell him he should cooperate and truthfully answer the
agents’ questions should be suppressed, because those statements did not
result from a knowing, intelligent, and voluntary waiver of Mr. Torjagbo’s
Miranda rights.
Mr. Torjagbo incorporates his discussion of the law from section I of this
brief. United States v. Ramirez, 991 F.Supp.2d 1258, 1268-1270 (S.D. Fla. 2014)
provides another pertinent example. Following Hart and Beale, the District Court
for the Southern District of Florida granted the defendant’s motion to suppress in
Ramirez. After Miranda warnings were read to the defendant Ramirez, a
detective told him that “it would be worse for him” if he did not cooperate and
speak with the officers. Id. at 1262. The district court held that the statements
were involuntarily rendered. Id. at 1268-1270. The district court noted that the
detective’s offending advice implicated the Fifth Amendment in two respects.
First, it ran opposite to the right to remain silent and the prohibition on using the
defendant’s decision to remain silent against him. Id. at 1270. Second, there was
no element within the Miranda warning that would have informed the defendant
that his silence could not be used against him. Id.
As in Hart, Beale, and Ramirez, Agent Caruana’s statements to Mr.
Torjagbo undermined the effect of the Miranda warning. In Hart, a detective
made multiple offending statements to the defendant in connection with
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interrogating him. One was that “honesty wouldn’t hurt him.” Hart, 323 F.3d at
889. The Eleventh Circuit stated that phrase was “simply not compatible with the
phrase ‘anything you can say can be used against you in court.’” Id. at 895. In
Beale, FBI agents told the defendant that signing the Miranda waiver form
wouldn’t hurt him. Beale, 921 F.2d at 1435. The Eleventh Circuit held that
statement also contradicted the Miranda warning that the defendant’s statements
could be used against him in court. Id.
The same is true here. In fact, Agent Caruana’s statement to Mr. Torjagbo
that any attorney would tell him to cooperate and answer the agents’ questions runs
counter to every aspect of the Miranda warning. On its face, the statement is at
odds with right to remain silent, and as in Hart, Beale, and Ramirez, the statement
contradicts the admonition that Mr. Torjagbo’s statements would be used against
him in court. Moreover, Caruana’s statement told Mr. Torjagbo that silence
would hurt him and that disclosure would help him. Lastly, Caruana’s statement
undermined the right to counsel. His statement suggested that it would be futile
to consult counsel, as any lawyer would tell him to cooperate and any answer
questions the agents posed — that is, waive your right to remain silent and
disregard any potentially incriminating impact your statements might have in court.
In that portion of the interrogation, Mr. Torjagbo’s waiver of his Miranda
Case 1:22-cr-00171-MLB-RDC Document 108 Filed 08/13/24 Page 21 of 24
22
rights was the product of coercion and deception rather than a free and deliberate
choice. Agent Caruana’s statements clouded understanding of the nature of the
rights being waived and the consequences of abandoning those rights. In sum, the
record does not demonstrate that Mr. Torjagbo voluntarily, knowingly, and
intelligently waived his Miranda rights at that juncture of the interrogation. Any
ensuing statements by Mr. Torjagbo should be suppressed.
IV.
Mr. Torjagbo’s statements were not voluntary after Agent Caruana told him
that any attorney would tell him that he should cooperate and answer the
agents’ questions.
Mr. Torjagbo incorporates his discussion of the law from previous sections
of this brief. As discussed, Agent Caruana’s statements that any attorney would
tell Mr. Torjagbo he should cooperate and truthfully answer the agents’ questions
and that Mr. Torjagbo would later regret it if he did not do so were coercive.
Officer Caruana over-reached. Although Mr. Torjagbo had been indicted for
nonviolent offenses, approximately ten FBI agents had quickly surrounded him
with guns drawn, handcuffed him on the ground, and placed him in the rear of a
police car. Those preceding events, Agent Caruana’s assertions, at times, that Mr.
Torjagbo’s responses were “bullshit,” Agent Caruana’s admonition as to what any
lawyer would tell Mr. Torjagbo, and his statements that Mr. Torjagbo would later
regret if he did not cooperate and truthfully answer the agents’ questions all
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combined to produce an environment that was not conducive to Mr. Torjagbo
making a free and unrestrained choice to make statements. Statements Mr.
Torjagbo rendered after Agent Caruana claimed any lawyer would tell him that he
should cooperate and truthfully answer the agents’ questions were involuntary.
Accordingly, Mr. Torjagbo’s statements from that point onward in the
interrogation should be suppressed.
Conclusion
For the reasons stated herein and in his motion to suppress, Mr. Torjagbo
moves the Court to suppress his statements and any evidence the Government may
have derived as fruit of those statements. See Wong Sun v. United States, 371 U.S.
471 (1963).
DATED: This 13th day of August, 2024.
Respectfully submitted,
S/ Kendal D. Silas
KENDAL SILAS
State Bar No. 645959
Attorney for CARL TORJAGBO
Federal Defender Program, Inc.
101 Marietta Street, N.W., Suite 1500
Atlanta, GA 30303
404/688-7530
Case 1:22-cr-00171-MLB-RDC Document 108 Filed 08/13/24 Page 23 of 24
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the foregoing Post-
Hearing Brief in Support of Motion to Suppress Statements, formatted in Times New
Roman 14-pt., upon:
John Russell Phillips, Esq.
Assistant United States Attorney
Federal Courthouse, Ste. 600
75 Ted Turner Drive, S.W.
Atlanta, GA 30303
by electronically filing the same through the Court’s ECF system.
Dated: This 13th day of August, 2024.
s/ Kendal D. Silas
KENDAL SILAS, Esq.
Attorney for CARL TORJAGBO
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