Reply Brief as to Carl Delano Torjagbo filed by Carl Delano Torjagbo — USA v. Torjagbo (Dkt. 123, 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. 123 · 2024-10-25 · Docket on CourtListener

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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 REPLY 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 reply brief in support of his motion 
and amended to suppress statements, docs. 44 and 88.  Mr. Torjagbo states the 
following. 
I. 
The Court should suppress the statements that Mr. Torjagbo challenges, 
because Mr. Torjagbo did not knowingly, intelligently and voluntarily waive 
his Miranda rights as to those statements. 
 
A person subject to custodial interrogation has the right to “control the time 
at the which the questioning occurs, the subjects discussed, and the duration of the 
interrogation.” Michigan v. Mosley, 423 U.S. 96, 102 (1975).  Thus, the person 
may choose to answer some questions but not others.  The act of reading Miranda 
warnings does not cure subsequent police over-reaching or actions that obfuscate 
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the meaning of the rights or the consequences of waiving them.  
The issue here is not simply whether Mr. Torjagbo agreed to speak with the 
agents after having been read Miranda warnings and whether he subsequently 
unequivocally invoked his right to remain silent.  Mr. Torjagbo had the rights to 
remain silent and request consultation with counsel at any time during the process 
of the interrogation.  Of central concern here are the actions that the law 
enforcement agents took to coerce and coax Mr. Torjagbo into not exercising those 
rights after the interrogation began.  When Mr. Torjagbo indicated repeatedly that 
he did not want to answer a question regarding the maximum number of employees 
he had at Kremkov Industries, Agent Caruana coerced and deceived him into 
giving an answer by falsely telling him that he would not lock him into his answer.   
Agent Caruana’s statement went to the heart of Mr. Torjagbo’s Miranda rights and 
undermined the voluntariness of any waiver of Miranda rights with respect to that 
topic.  Agent Caruana obfuscated the clarity and meaning of the privilege against 
self-incrimination and the consequences of waiving it, and Mr. Torjagbo did not 
knowingly and intelligently waive his Miranda rights as to that topic.  
Later in the interrogation, Agent Caruana told Mr. Torjagbo that any 
attorney would tell him that he should cooperate with the agents and truthfully 
answer their questions, and he suggested that Mr. Torjagbo might later regret if he 
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did not do so.  Those statements from Agent Caruana undermined Mr. Torjagbo’s 
Miranda rights in their entirety, as they misled Mr. Torjagbo as to the nature of the 
right to remain silent, the consequences of waiving that right, and the general lack 
of benefit of consulting with counsel.  As to Mr. Torjagbo’s subsequent 
statements, Mr. Torjagbo did not knowingly and intelligently waive his Miranda 
warnings.   
II. 
The Court should suppress the statements that Mr. Torjagbo challenges, 
because the Government has failed to demonstrate that they were voluntarily 
rendered under the totality of the circumstances. 
 
In the Eleventh Circuit, the evidentiary burden is on the Government to 
establish the voluntariness of the defendant’s statement by a preponderance of the 
evidence when the defendant has challenged whether the statement was voluntarily 
rendered. United States v. Grimes, 142 F.3d 1342, 1350 (11th Cir. 1998).  
Contrary to the Government’s assertion, Mr. Torjagbo has not failed to meet any 
burden that applies to him.  Instead, Mr. Torjagbo posits that the Government has 
failed to meet its burden. 
The determination of whether Mr. Torjagbo’s statements were voluntarily 
rendered is to be made based upon an assessment of the totality of the 
circumstances. United States v. Rivera, 372 Fed. Appx. 985, *4 (11th Cir. 2010). 
Subtleties in coercion and vulnerabilities in his state of the mind should be 
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considered. See Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973) (addressing 
voluntariness of consent to search).  In this case, consideration of the 
circumstances in the aggregate supports a finding that Mr. Torjagbo’s statements 
were not voluntary.   
First, it was not simply the case that there were a number of agents at the 
scene of Mr. Torjagbo’s arrest.  There were at least ten agents, who travelled to 
Mr. Torjagbo’s location in three or four vehicles. (T. 24-26).  Those agents 
surrounded Mr. Torjagbo with their vehicles and quickly exited their vehicles. (T. 
9, 24-27).  They all pointed their guns at Mr. Torjagbo. (T. 9, 24-27).  During 
the interrogation, Mr. Torjagbo spoke of how he had been frightened by the nature 
of the arrest, including having guns pointed at him. (Def. Exh. 1(b) at 00:05-
00:57).1  Mr. Torjagbo also noted the nature of the guns, which included assault 
rifles. (Def. Exh. 1(b) at 00:05-00:57).  Whether those events qualify a routine 
arrest, as the Government suggests, is highly debatable.  But, in any event, those 
circumstances could reasonably have a coercive impact on the arrestee who is 
interrogated immediately afterward. 
Aggressive police conduct during the questioning can add an element of 
 
1 This citation is a reference to the second of two recordings contained on Defense 
Exhibit 1. 
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coerciveness. See United States v. Eubank, Unpublished, 2015 WL 3557493, *9 
(S.D. Ga. Mar. 18, 2015).  The use of curse words by the interrogator, such as 
occurred here, is a type of pertinent, aggressive police behavior. See id.  Agent 
Caruana’s offending statements are also a factor contributing to the involuntariness 
of Mr. Torjagbo’s statements.  That is, the deception Agent Caruana used in 
coaxing Mr. Torjagbo to state the maximum number of employees Kremkov 
Industries had is a consideration.  Likewise, the assessment must take into 
account the coerciveness Agent Caruana exhibited in telling Mr. Torjagbo that any 
lawyer would tell him he should cooperate and truthfully answer the agents’ 
questions and by suggesting to Mr. Torjagbo that he may later regret it if he did not 
do so.    
The Government cites no cases that say a law enforcement agent can 
legitimately tell an interrogatee that he will not lock him into his answer and then 
do the opposite or where a court has sanctioned an officer telling an interrogatee 
that any lawyer would tell him he should cooperate and truthfully answer the 
agents’ questions. See Doc. 109 at 19-20.  While the Government has cited 
support for the proposition that the benefits of cooperation may be discussed, doc. 
109 at 19-20, the latter statement from Agent Caruana goes further in terms of 
coerciveness.   
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It is notable that in one of the cases upon which the Government relies, 
United States v. Quinn, 123 F.3d 1415, 1423-1424 (11th Cir. 1997), the Eleventh 
Circuit did not endorse the agent having told Quinn that it would be difficult for 
him to cooperate once an attorney had been appointed.  The Eleventh Circuit said 
only that “[w]e observe . . . that Quinn made no inculpatory statements after Kent’s 
statement about obtaining counsel.” Id. at 1424.  Here, after Agent Caruana’s 
offending statement, Mr. Torjagbo discussed with the agents a range of topics that 
are likely to be viewed as germane to the pending charges.  Among others, those 
topics included the following: Mr. Torjagbo’s purchases of tractor-trailers and real 
estate after obtaining the PPP loan; Mr. Torjagbo’s connection to Monica Sweeten, 
who is now named as an alleged victim in an aggravated identity theft charge 
against Mr. Torjagbo;2 the operational history of Kremkov Industries; Mr. 
Torjagbo’s changing of his name; the existence of two social security numbers 
associated with Mr. Torjagbo; whether names listed on an employee payroll 
document for Kremkov Industries were real; and the basis for Mr. Torjagbo having 
claimed approximately $9,000,000 as income on his personal tax return. (Def. Exh. 
1 at 16:39-39:49).3  When all the circumstances here are considered, the Court 
 
2 That charge is set forth in Count 2 of the superseding indictment. Doc. 110. 
3 This citation references the first of two recordings on Defendant’s Exhibit 1. 
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should find that Mr. Torjagbo’s statements at issue should be suppressed as 
involuntary. 
III. 
Prevailing precedent supports suppression of Mr. Torjagbo’s statements. 
 
As a general matter, the Government overlooks that Mr. Torjagbo had the 
right to decide at any time that he would exercise his rights to remain silent and to 
have counsel.  The Government emphasizes that Mr. Torjagbo was read Miranda 
warnings and that afterward he agreed to speak with Agents Caruana and Pressley, 
waiving his rights.  However, the rights were not forever waived.  Agent 
Caruana did not have license to trick, deceive, and coerce Mr. Torjagbo into 
answering questions he otherwise might not have simply because Mr. Torjagbo 
had initially agreed to speak with the agents.    
 
Mr. Torjagbo’s reliance on United States v. Farley, 607 F.3d 1294, 1329 
(11th Cir. 2010), is for the black letter proposition that a suspect’s statements are 
involuntary when they ensue from “deception [by the police that] goes directly to 
the natures of the suspect’s rights and the consequences of waiving them.”4  In 
Hart v. Attorney General of the State of Florida, 323 F.3d 884, 892-895 (11th Cir. 
2003), and United States v. Beale, 921 F.2d 1412, 1434-1435 (11th Cir. 1991), the 
 
4 Farley involved a misrepresentation by an agent as to the topic about which he 
wanted to question the suspect. 607 F.3d at 1307-1308, 1326-1329. 
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Eleventh Circuit held that based on deceptive actions by officers, the two 
respective defendants did not render valid waivers of their Miranda rights.  While 
the offending statements that Agent Caruana made to Torjagbo may not be the 
same as those expressed in Hart and Beale, they are comparable in both substance 
and effect.   
 
Contrary to the Government’s argument, Hart is not materially 
distinguishable because Hart, at one point, asked an interrogating detective 
whether he should get a lawyer. See Hart, 323 F.3d at 894.  As in this case, an 
officer read Miranda warnings to Hart, and Hart executed a waiver of those rights. 
Id. at 893.  The Eleventh Circuit observed that a detective “went to great lengths 
to apprise Hart of his rights.” Id.  When that detective asked Hart about certain 
homicides in which he had become a suspect, Hart asked to speak with another 
detective with whom he was familiar. Id. at 894.  When that second detective 
came to speak with Hart, he asked her if he should get a lawyer. Id.  She initially 
responded that she could not answer that question, and he subsequently asked her 
about the pros and cons of hiring a lawyer. Id.  She responded by saying that in 
her opinion, “He’ll protect your rights.  He’ll tell you what to answer, what not to 
answer, and he’ll be there for you.” Id.  But she added, “I’m going to want to ask 
you questions and he’s going to tell you you can’t answer me.” Id.  That detective 
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also told Hart that “honesty wouldn’t hurt him.” Id.  The Eleventh Circuit said 
that the detective’s statements to Hart were misleading as to Hart’s privilege 
against self-incrimination and right to counsel and the consequences of waiving the 
privilege against self-incrimination. Id. 
 
The same is true here.  It matters not that Mr. Torjagbo had submitted to 
some amount of questioning before he indicated that he did not want to answer 
questions about the maximum number of employees that Kremkov Industries had, 
and Agent Caruana told him that he would not lock him into his answer.  
Caruana’s statement was comparable to the detective’s statement in Hart that 
“honesty wouldn’t hurt him.” Both contradicted the Miranda warning that anything 
the person said could be used against him in court. See Hart, 323 F.3d at 894. 
 
It also does not matter that it was approximately seventeen minutes into the 
interrogation when Agent Caruana told Mr. Torjagbo that any lawyer would tell 
him that he should cooperate and truthfully answer questions the agents posed to 
him.  The statement was misleading as to the benefits of exercising the rights to 
counsel and to remain silent.  That bears similarity to what the detective did in 
Hart.  In both this case and in Hart, the officer imputed advice from a prospective 
lawyer for the purpose of encouraging the suspect to waive his right to remain 
silent and answer potentially incriminating questions at that time without a lawyer 
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present.  
 
In Beale, an FBI agent told the defendant, Francisco Lavin, that signing a 
Miranda waiver form would not hurt him. 921 F.2d at 1434.  That statement is 
comparable to Agent Caruana’s statement to Mr. Torjagbo that he would not lock 
Mr. Torjagbo into a statement about the maximum number of employees that 
Kremkov Industries had.  In both instances, the law enforcement agent misled the 
defendant as to the nature of his privilege against self-incrimination and the 
consequences of waiving the privilege.   
 
Beale is also significant for the second offending statement that Agent 
Caruana made to Mr. Torjagbo – that any attorney would tell him that he should 
cooperate and truthfully answer the agents’ questions.  Agent Caruana’s statement 
was premised on the assertion that continued waiver of the privilege would not be 
detrimental to Mr. Torjagbo.  That bears similarity to Beale.  
Conclusion 
For these reasons and those stated in Mr. Torjagbo’s motions to suppress 
statements and initial brief in support, Mr. Torjagbo moves the Court to suppress 
his statements regarding the maximum number of employees that Kremkov 
Industries had and any statements he made after Agent Caruana told him that any 
lawyer would tell him he should cooperate and truthfully answer the agents’ 
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questions and suggested that Mr. Torjagbo might later regret it if he did not do so.  
Mr. Torjagbo also moves the Court to suppress any evidence that the Government 
may have derived as fruit of those statements by Mr. Torjagbo. See Wong Sun v. 
United States, 371 U.S. 471 (1963).  
DATED: This 25th day of October, 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 
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CERTIFICATE OF SERVICE 
 
This is to certify that I have this day served a copy of the foregoing Post-
Hearing Reply 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 25th day of October, 2024. 
 
 
s/ Kendal D. Silas                   
KENDAL SILAS, Esq. 
Attorney for CARL TORJAGBO 
 
 
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