Objections to 128 Report and Recommendation as to Carl Delano Torjagbo — USA v. Torjagbo (Dkt. 132, 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. 132 · 2024-12-11 · Docket on CourtListener

Full text

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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 TORJAGBO 
 
 
) 
                                                              ) 
 
OBJECTIONS TO REPORT AND RECOMMENDATION 
 
 
COMES NOW the Defendant, CARL TORJAGBO, by and through 
undersigned counsel, and files these objections to the Report and Recommendation 
(hereinafter “R&R”) of the Magistrate recommending denial of his preliminary 
motion to suppress statements (doc. 44), amended motion to suppress statements 
(doc. 88), and motion to strike surplusage (doc. 83).1        
1. 
 
Mr. Torjagbo objects to the review and consideration of a transcript of the 
FBI interview of Mr. Torjagbo. See (Doc. 128 at 2).  The exhibits admitted into 
evidence at the June 5, 2024 evidentiary hearing did not include a transcript of the 
recorded interview. See (Docs. 89, 90, 91, & 92); see also (Doc. 128 at 2, 10-14, 
 
1 The Report and Recommendation of the Magistrate is document number 128 on 
the docket of the Clerk. 
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23, 27-28, 30, 32-33, & 37 n. 6).  
2. 
 
Mr. Torjagbo objects to the Magistrate’s assertion in footnote 4 that he is 
requesting that inferences be drawn from utter speculation rather established facts 
with respect to whether there was a portion of the interview or discussion between 
Agent Caruana and Mr. Torjagbo that was not recorded. (Doc. 128 at 14).  There 
was, in fact, a portion of the discussion that was not recorded.  During the 
interrogation, Agent Caruana confronted Mr. Torjagbo about not being truthful in 
Agent Caruana’s view. (Def. Exh. 1 at 17:22-17:52).  Among other things, Agent 
Caruana told Mr. Torjagbo, “That’s why I was clear to you and explained to you 
how you can help yourself in the federal system.” Id.  Agent Caruana went on to 
tell Mr. Torjagbo that any attorney would tell him the same thing. (Def. Exh. 1 at 
17:52-18:08).  Agent Caruana was alluding to being cooperative with the agents in 
the questioning of him and truthfully answering their questions.  The audio 
recording of the interrogation does not contain a prior discussion wherein Agent 
Caruana told Mr. Torjagbo how he could help himself in the federal system.  Thus, 
that discussion and advice from Agent Caruana to Mr. Torjagbo must have taken 
place at time when the discussion between Mr. Torjagbo and Agent Caruana was 
not being recorded. 
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Mr. Torjagbo posits that Agent Caruana’s statements to him that any 
attorney would tell him that he should cooperate and truthfully answer the agents’ 
questions undermined the effect of the Miranda warning and also rendered Mr. 
Torjagbo’s subsequent statements involuntary.  (Doc. 108 at 20-23).   In 
connection with those statements to Mr. Torjagbo, Agent Caruana reminded Mr. 
Torjagbo that he already told him how he could help himself in the federal system. 
Although the specifics of Caruana’s prior, unrecorded statements to Mr. Torjagbo 
are not known, the fact that Agent Caruana had previously made statements on that 
topic to Mr. Torjagbo are relevant to the Court’s consideration of the impact of 
Agent Caruana’s later statements to Mr. Torjagbo that any attorney would tell him 
that he should cooperate with the agents’ questioning of him and truthfully answer 
their questions.   
3. 
 
Mr. Torjagbo objects to the Magistrate’s determinations that he voluntarily, 
knowingly, and intelligently waived his Miranda rights and that his statements 
were voluntarily rendered. (Doc. 92 at 18-32).  
4. 
 
Mr. Torjagbo objects to the Magistrate’s determinations that under the 
totality of the circumstances he was not coerced into waiving his Miranda rights 
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and that his statements were voluntarily rendered. (Doc. 128 at 22-26).  In 
particular, Mr. Torjagbo objects to the Magistrate’s assertion that the evidence 
does not indicate that the agents coerced him into waiving his rights.  (Doc. 128 at 
24-26). 
5.  
 
Mr. Torjagbo objects to the Magistrate’s assertion that the evidence does not 
indicate that the agents physically intimidated or coerced him into waiving his 
Miranda rights. (Doc. 128 at 24).  Mr. Torjagbo was interrogated shortly after he 
had been arrested at gunpoint by ten FBI agents.  The agents arrived to the location 
in three or four vehicles. (Doc. 94. at 24-26).  As they observed Mr. Torjagbo 
walking across the parking lot, the 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. (Doc. 94 at 9, 24-27).  The 
weapons pointed at Mr. Torjagbo included assault rifles. (Def. Exh. 1, pt. 2 at 
00:00-00:57).  At least one agent yelled commands to Mr. Torjagbo, such as “show 
your hands” or “get on the ground.” (Doc. 94 at 27-28).  Mr. Torjagbo got on the 
ground, and the agents arrested him. (Doc. 94 at 26, 28).  They placed Mr. 
Torjagbo in handcuffs and placed him in Special Agent Scott Caruana’s 
Government vehicle. (Doc. 94 at 10-11, 24, 26).  During the recorded interview, 
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Mr. Torjagbo told Agent Caruana that they had scared him by the manner in which 
they arrested him. (Def. Exh. 1, pt. 2 at 00:00-00:57).  The assessment of whether 
Mr. Torjagbo voluntarily waived his Miranda rights should take into account the 
nature of the arrest encounter and its impact on Mr. Torjagbo.  
6. 
 
Mr. Torjagbo objects to the Magistrate’s determination that Agent Caruana’s 
statement that he would not lock Mr. Torjagbo into his answer did not undermine 
Mr. Torjagbo’s understanding of his Miranda rights or the consequences of 
waiving those rights. (Doc. 128 at 26-28).  As argued in Mr. Torjagbo’s initial 
brief and reply brief in support of his motion to suppress statements, (docs. 108, 
123), Agent Caruana contradicted the element of the Miranda warning that 
anything the suspect says during the custodial interrogation can and will be used 
against him court.  Agent Caruana’s statement undermined Mr. Torjagbo’s Fifth 
Amendment right against self-incrimination.   
 
Mr. Torjagbo had the right to invoke his Fifth Amendment privilege at any 
point and as to any topic or question during the interrogation. See Michigan v. 
Mosley, 423 U.S. 96, 102 (1975) (interrogatee has the right to control the timing of 
and duration of interrogation and the subjects discussed).  Mr. Torjagbo told Agent 
Caruana multiple times that he could not answer the question of the maximum 
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number of employees he had at Kremkov Industries.  Agent Caruana then coaxed 
Mr. Torjagbo into giving him an answer by telling Mr. Torjagbo that he would not 
lock Mr. Torjagbo him into his answer.  But if Mr. Torjagbo’s statement is 
introduced against him at trial, that is exactly what the Government will have done.  
Agent Caruana seriously distorted Mr. Torjagbo’s ability “to weigh the pros and 
cons of [making the statement] and go[ing] with the balance as it appeared at that 
time.” See United States v. Lall, 607 F.2d 1277, 1286 (11th Cir. 2010) (citing 
Judge Posner’s analysis in United States v. Rutledge, 900 F.2d 1127, 1129 (7th 
Cir. 1990). 
7. 
 
Mr. Torjagbo objects to the Magistrate’s assertion that Agent Caruana’s 
statement that he would not hold Mr. Torjagbo’s statement against him is 
qualitatively different from the statements of law enforcement officers that were in 
issue in Hart v. Att’y Gen. of Fla., 323 F.3d 884 (11th Cir. 2003), Lall, supra, and 
United States v. Castor, 598 Fed. Appx. 700 (11th Cir. 2015). (Doc. 128 at 26-28).  
As with those cases, the only plausible interpretation of Agent Caruana’s statement 
to Mr. Torjagbo was that the information Mr. Torjagbo provided regarding the 
maximum number of employees at Kremkov would not be used against him. 
 
The Magistrate notes that Agent Caruana told Mr. Torjagbo multiple times 
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that he did not need Mr. Torjagbo’s cooperation to make a case against him, but 
those statements by Agent Caruana bolster rather than limit the significance of 
Agent Caruana telling Mr. Torjagbo that he would not lock him into an answer 
regarding the maximum number of employees he had at Kremkov.  Agent 
Caruana’s assertions were effectively a claim that he already had a strong enough 
case, and therefore, it would be all the more believable that he would not need to 
use against Mr. Torjagbo a statement regarding the maximum of employees he 
had. 
 
The Magistrate also states that Mr. Torjagbo’s statements both before and 
after his admission establish that he understood his right to remain silent and the 
consequences of waiving that right. (Doc. 128 at 27).  However, this was the only 
occasion when Agent Caruana told Mr. Torjagbo that he would not lock him into 
his answer.  Thus, the statement at issue here stands on different footing in terms of 
distortion of the ability to weigh the consequences of making the statement. 
 
Lastly, the Magistrate notes that Mr. Torjagbo expressed understanding that 
the giving incorrect information would be detrimental to him. (Doc. 128 at 28).  
But the circumstances surrounding Mr. Torjagbo’s statements about the maximum 
number of employees differentiated it from other statements he made.  This was 
the one time when Agent Caruana told Mr. Torjagbo he would not lock him into 
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his answer.  For these reasons and those expressed in Mr. Torjagbo’s initial brief 
and reply brief in support of his motion to suppress statements, Mr. Torjagbo posits 
that the Government has not demonstrated by a preponderance of the evidence that 
Mr. Torjagbo voluntarily made a statement regarding the maximum number of 
employees he had at Kremkov Industries. 
8. 
 
Mr. Torjagbo objects to the Magistrate’s determination that Agent Caruana’s 
statement that any attorney would tell Mr. Torjagbo to cooperate and answer the 
agents’ questions did not undermine Mr. Torjagbo’s understanding of his Miranda 
rights or the consequences of waiving those rights. (Doc. 128 at 28-33).  Contrary 
to the Magistrate’s assertion, Mr. Torjagbo posits that the facts of this case are not 
materially distinguishable from those in Hart and Beale.  Most of the interrogation 
in this case took place after Agent Caruana told Mr. Torjagbo that any attorney 
would tell him to cooperate and truthfully answer the agents’ questions.  After 
making that statement to Mr. Torjagbo, Agent Caruana and Agent Pressley 
questioned Mr. Torjagbo about a number of topics. (Def. Exh. 1 at 17:10-41:46).  
Mr. Torjagbo was cooperative.  Agent Caruana’s statement Mr. Torjagbo 
realistically had an impact on the degree to which Mr. Torjagbo engaged in the 
interrogation and made statements.  Mr. Torjagbo posits that the Government has 
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not borne its burden of establishing by a preponderance of the evidence that he 
knowingly, voluntarily, and intelligently waived his Miranda rights after Agent 
Caruana told him that any attorney would tell him that he should cooperate and 
truthfully answer the agents’ questions.  Likewise, the Government has not borne 
its burden of establishing by a preponderance of the evidence that he voluntarily 
rendered the statements he made after Agent Caruana’s offending. 
9. 
 
Mr. Torjagbo objects to the Magistrate’s denial of his motion to strike 
surplusage from the indictment, which requests that “a/k/a Karl Lucius Delano” be 
stricken thrughout the indictment.  
Conclusion 
 
For the reasons set forth herein, in his preliminary motion to suppress 
statements (doc. 44), amended motion to suppress statements (doc. 88), and motion 
to strike surplusage (doc. 83), and supporting briefs, Mr. Torjagbo asks that those 
motions be granted.   
 
 
 
 
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Dated:  This 11th day of  December, 2024. 
 
Respectfully submitted, 
 
 
 
 
 
 
 
 
 
s/ Kendal D. Silas                     
KENDAL SILAS 
State Bar No. 645959 
Attorney for CARL TORJAGBO 
 
Federal Defender Program, Inc. 
Suite 1500, Centennial Tower 
101 Marietta Street, N.W. 
Atlanta, GA 30303 
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CERTIFICATE OF SERVICE 
 
I hereby certify that the foregoing Objections to Report and 
Recommendation was formatted in Times New Roman 14pt., in accordance with 
Local Rule 5.1C, and 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 11th day of December, 2024. 
 
 
s/ Kendal Silas                                           
KENDAL SILAS, Esq. 
Attorney for CARL TORJAGBO 
 
 
 
Case 1:22-cr-00171-MLB-RDC     Document 132     Filed 12/11/24     Page 11 of 11

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