Motion to Sever Counts Carl Delano Torjagbo (1) Count 9s-10s by Carl Delano Torjagbo — USA v. Torjagbo (Dkt. 115, N.D. Ga. No. 1:22-cr-00171)

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 115 · 2024-09-26 · Docket on CourtListener

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 
CARL DELANO TORJAGBO  
 
)  
 
MOTION FOR SEVERANCE OF COUNTS 
 
 
COMES NOW the Defendant, CARL TORJAGBO, by and through 
undersigned counsel, and moves this Court to sever for trial Counts Nine and Ten 
from the remaining counts of the superseding indictment.  In support of this motion, 
Mr. Torjagbo states the following. 
 
The original indictment charged Mr. Torjagbo with seven counts related to the 
acquisition of a PPP loan and the alleged expenditure of those funds.  The charges 
included one count of bank fraud in violation of 18 U.S.C. §§ 1344 and 2, three 
counts of concealment money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B) 
and 2, and three counts of transactional money laundering in violation of 18 U.S.C. 
§§ 1957 and 2.  The superseding indictment adds one count of aggravated identity 
theft in violation of 18 U.S.C. §§ 1028A(a)(1) and 2 and two counts of wire fraud in 
violation of 18 U.S.C. §§ 1343 and 2.   The aggravated identity theft charge alleges 
Case 1:22-cr-00171-MLB-RDC     Document 115     Filed 09/26/24     Page 1 of 6

 
 
2 
that during and in relation to the acquisition of the PPP loan Mr. Torjagbo possessed 
and used, without lawful authority, a means of identification of another person, that 
person being M.S. Doc. 110 at 5.  The wire fraud charges allege that on February 13, 
2021 Mr. Torjagbo filed two fraudulent U.S. individual forms 1040 for tax year 
2020. Doc. 110 at 12-13.  The two wire fraud charges are set forth in Counts Nine 
and Ten. Doc. 110 at 12-13.    
Federal Rule of Criminal Procedure 8(a) states: 
 
The indictment or information may charge a defendant in separate 
counts with 2 or more offenses if the offenses charged — whether 
felonies or misdemeanors or both — are of the same or similar character, 
or are based on the same act or transaction, or are connected with or 
constitute parts of a common scheme or plan. 
 
F.R.C.P. 8(a).  Federal Rule of Criminal Procedure 14(a) states: 
 
If the joinder of offenses or defendants in an indictment, an 
information, or a consolidation for trial appears to prejudice a 
defendant or the government, the court may order separate trials of 
counts, sever the defendants’ trials, or provide any other relief that 
justice requires. 
 
F.R.C.P. 14(a). 
The risk of prejudice is particularly great in this context, since the issue is 
not merely joinder of defendants but rather joinder of counts. "It is much more 
difficult for jurors to compartmentalize damaging information about one 
defendant derived from joined counts than it is to compartmentalize evidence 
Case 1:22-cr-00171-MLB-RDC     Document 115     Filed 09/26/24     Page 2 of 6

 
 
3 
against separate defendants joined for trial." United States v. Lewis, 787 F.2d 
1318, 1322 (9th Cir. 1986), as amended, 798 F.2d 1250 (9th Cir. 1989) (reversing 
denial of motion to sever).  As noted in legal commentary: 
The large majority of persons of average intelligence are untrained in 
logical methods of thinking, and are therefore prone to draw illogical 
and incorrect inferences, and conclusions without adequate foundation. 
From such persons jurors are selected. They will very naturally believe 
that a person is guilty of the crime with which he is charged if it is 
proved to their satisfaction that he has committed a similar offense, or 
any offense of an equally heinous character. 
 
1 H.D. Underhill, Treatise on the Law of Criminal Evidence § 205, at 447  
 
(Philip F. Herrick ed., 5th ed. 1956), quoted in Jones, 67 F.3d 320, 322 n. 6  
 
(D.C. Cir. 1995). 
 
 
This concern is no minor one.  Courts have consistently  recognized  the 
“highly prejudicial nature of other-crimes evidence,” as noted in United States 
v. Jones, 67 F.3d 320, 322 (D.C. Cir. 1995): 
It is always prejudicial to a defendant. It diverts the attention of the jury 
from the question of the defendant’s responsibility for the crime charged 
to the improper issue of his bad character. Federal Rule of Evidence 
403 embodies the concern for a defendant’s right to a fair trial and 
requires the district court to reject evidence whose prejudicial effect 
substantially outweighs its probative value. See United States v. 
Simpson, 992 F.2d 1224, 1229 (D.C. Cir.) (finding “the fairness of the 
entire proceeding” questionable when other-crimes evidence was 
improperly admitted), cert denied, 510 U.S. 906 (1993). 
 
Id. at 322. See also United States v. Nguyen, 88 F.3d 812, 816 (9th Cir.  
Case 1:22-cr-00171-MLB-RDC     Document 115     Filed 09/26/24     Page 3 of 6

 
 
4 
1996). 
 
 
The superseding indictment now charges offenses arising from separate 
alleged fraud schemes.  The original indictment charged wrongful acquisition of a 
PPP loan and offenses based on alleged expenditure of that money.  Now, the 
superseding indictment adds in Counts Nine and Ten allegations of illegality in the 
filing of two tax returns.    
 
Mr. Torjagbo would be greatly prejudiced by a trial of the wire fraud charges, 
which relate to the filing of the tax returns, in conjunction with trial of offenses 
related to the alleged PPP fraud.  Based on the nature of the charged conduct, there 
is a substantial risk that a single jury would be inhibited in its ability to consider the 
evidence separately with respect to the different alleged schemes.   A single trial of 
all the counts would essentially allow the Government to present other-crimes 
evidence without satisfying the requirements of Rule 404(b) and without being 
subjected to the exclusionary discretion provided under Rule 403. 
 
WHEREFORE, Mr. Torjagbo comes now and moves the Court to sever for 
trial Counts Nine and Ten from the remaining counts of the indictment.   
 
 
Case 1:22-cr-00171-MLB-RDC     Document 115     Filed 09/26/24     Page 4 of 6

 
 
5 
Dated: This 26th day of September, 2024. 
 
 
 
 
 
 
 
 
 
 
 
Respectfully submitted, 
 
 
s/ Kendal D. Silas                      
 
KENDAL D. SILAS 
State Bar of Georgia No. 645959 
Attorney for CARL TORJAGBO 
 
Federal Defender Program, Inc. 
Suite 1500, Centennial Tower 
101 Marietta Street, N.W. 
Atlanta, GA 30303; 404/688-7530 
Case 1:22-cr-00171-MLB-RDC     Document 115     Filed 09/26/24     Page 5 of 6

 
 
6 
 
CERTIFICATE OF SERVICE 
 
I hereby certify that the foregoing Motion for Severance of Counts was 
electronically filed this day with the Clerk of Court using the CM/ECF system, 
which will automatically send email notification of such filing to the following: 
John Russell Phillips, Esq. 
 
Assistant United States Attorney 
Northern District of Georgia 
Federal Courthouse, Ste. 600  
75 Ted Turner Drive, S.W. 
Atlanta, GA 30303 
 
Dated: This 26th day of September, 2024. 
 
 
s/ Kendal D. Silas                            
 
KENDAL D. SILAS, Esq. 
Attorney for  CARL TORJAGBO 
 
Case 1:22-cr-00171-MLB-RDC     Document 115     Filed 09/26/24     Page 6 of 6

File and source

File

gov.uscourts.gand.303267.115.0.pdf

Size

148,514 bytes

SHA-256

42aa79f1feec9319f2ff1f997c8a556443ca483d83f0957a69f3b5c53a72f63d

Our copy

gov.uscourts.gand.303267.115.0.pdf

Original

PACER (login required)