Order as to Carl Delano Torjagbo (1): The Court Overrules Defendant's 132 Objections — USA v. Torjagbo (Dkt. 155, 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. 155 · 2025-01-13 · 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, 
 
v. 
 
Carl Delano Torjagbo, 
 
Defendant. 
 
_________________________________/ 
 
 
 
Case No. 1:22-cr-171-MLB 
 
 
 
 
 
 
ORDER 
 
A grand jury indicted Defendant, charging him with multiple 
counts of fraud and other crimes related to his alleged misappropriation 
and misuse of funds under the Paycheck Protection Program (“PPP”).  
(Dkt. 110.)  Defendant moves to: (1) suppress statements he gave FBI 
agents, (2) strike an alleged alias from the indictment, and (3) sever and 
separately try two counts of fraud related to his allegedly filing 
fraudulent tax documents.  (Dkts. 44; 81; 88; 115.)  Magistrate Judge 
Cannon issued a Final Report and Recommendation (R&R) saying this 
Court should deny the motion to suppress and motion to strike.  (Dkt. 
128.)  The Magistrate Judge deferred to the Court a ruling on the motion 
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to sever.  (Dkt. 134.)  Defendant objects.  (Dkt. 132.)  The Court adopts 
the R&R. 
I. 
Standard 
28 U.S.C. § 636(b)(1) requires district courts to “make a de novo 
determination of those portions of [an R&R] to which objection is made.”  
Any such objection “must specifically identify the portions of the [R&R] 
to which objection is made and the specific basis for objection.”  
McCullars v. Comm’r, Soc. Sec. Admin., 825 F. App’x 685, 694 (11th Cir. 
2020)1; see United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009) 
(“[A] party that wishes to preserve its objection must clearly advise the 
district court and pinpoint the specific findings that the party disagrees 
with.”).  “Frivolous, conclusive, or general objections need not be 
considered by the district court.”  Marsden v. Moore, 847 F.2d 1536, 1548 
(11th Cir. 1988).   
“It does not appear that Congress intended to require district court 
 
1 The Court recognizes McCullars is unpublished and not binding.  The 
Court cites it and other unpublished cases as instructive, nonetheless.  
See Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1355 n.5 (11th 
Cir. 2018) (“Unpublished cases do not constitute binding authority and 
may be relied on only to the extent they are persuasive.”). 
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review of a magistrate’s factual or legal conclusions, under a de novo or 
any other standard, when neither party objects to those findings.”  
Thomas v. Arn, 474 U.S. 140, 150 (1985).  And, in most cases, “[a] party 
failing to object to [an R&R] waives the right to challenge on appeal the 
district court’s order based on unobjected-to factual and legal 
conclusions.”  McGriff v. Comm’r, Soc. Sec. Admin., 654 F. App’x 469, 472 
(11th Cir. 2016).  Ultimately, whether or not objections are filed, a district 
court “may accept, reject, or modify, in whole or in part, the findings or 
recommendations made by the magistrate judge.”  28 U.S.C. § 636(b)(1).  
II. 
Background 
According to the indictment, in early 2021, Defendant created a 
sham business—Kremkov Industries—and filed a PPP loan application 
on its behalf.  (Dkt. 110 at 2–3.)  As part of the application, Defendant 
certified Kremkov was “in operation on February 15, 2020,” had 493 
employees, averaged a monthly payroll of $3,821,770, and a loan was 
“necessary to support the ongoing operations of [the business].”  (Dkt. 110 
at 3.)  Defendant swore the information he provided in the application 
and all supporting documents were “true and accurate in all material 
respects,” but he allegedly “knew and had reason to know that the 
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application 
contained 
materially 
false 
and 
fraudulent 
misrepresentations.”  (Id.)  After Defendant submitted the application, 
Chase Bank transferred him $9,554,425 in PPP loans.  (Dkt. 110 at 4.)  
Rather than using this money to fund payroll for Kremkov, Defendant 
allegedly spent some of it on “personal debts and expenses and to fund a 
lifestyle for himself that he otherwise could not have afforded.”  (Dkt. 110 
at 6–8.)  Four months later, Defendant petitioned to change his name to 
Karl Lucius Delano.  (Dkt. 110 at 7.)  He then purportedly spent more of 
the PPP money to buy property under the name of Karl Lucius Delano 
and to pay startup expenses and buy property for a different company he 
created.  (Id.)  The indictment also claims Defendant defrauded the IRS 
by filing false tax documents and receiving tax returns on behalf of 
Kremkov.  (Dkt. 110 at 12.)    
A grand jury indicted Defendant on May 10, 2022.  (Dkt. 1.)  A 
couple days later, FBI agents arrested Defendant and interviewed him.  
(Dkt. 94 at 7.)2  In September 2024, the United States filed a superseding 
indictment that remains operative.  (Dkt. 110.)  Defendant moves to 
 
2 When referencing transcripts, the Court cites the pagination of the 
transcript rather than that of the CM/ECF system.   
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suppress statements he made during the FBI interview and to strike 
from the indictment certain details about the Karl Lucias Delano alias.  
(Dkts. 44; 81; 88.)  Magistrate Judge Cannon issued an R&R 
recommending the Court deny those motions.  (Dkt. 128.)  Defendant 
objects.  (Dkt. 132.)  Defendant also moves to sever the tax-related counts 
and try them separately.  (Dkt. 115.)  The Magistrate Judge deferred that 
motion for a decision by this Court.  (Dkt. 134.)   
III. Motion to Suppress 
Defendant moves to suppress statements he gave the FBI during 
his interview, arguing he did not voluntarily waive his rights to silence 
and counsel under Miranda v. Arizona, 384 U.S. 436 (1966) before 
offering speaking to federal agents.  (Dkts. 44; 88.)   
A. 
Standard 
“Before the [United States] can introduce a defendant’s 
uncounseled, self-incriminating statements made during a custodial 
interrogation, the [United States] must show that the defendant 
knowingly and voluntarily waived his Miranda rights[.]”  Schoolcraft v. 
Warden, G.S.P., 2023 WL 7014049, at *3 (11th Cir. Oct. 25, 2023).  The 
United States must show the defendant’s waiver (1) “was the product of 
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a free and deliberate choice rather than intimidation, coercion, or 
deception,” and (2) was “made with full awareness of both the nature of 
the right being abandoned and the consequences of the decision to 
abandon it.”  Berghuis v. Thompkins, 560 U.S. 370, 382–83 (2010) 
(internal quotation marks and citation omitted).  When considering 
whether the “totality of the circumstances” shows the defendant’s 
voluntary waiver, courts consider the defendant’s education and 
intelligence, whether law enforcement apprised the defendant of his or 
her rights, the length of detention, the repeated and prolonged nature of 
the questioning, and the use of physical punishment.  Schneckloth v. 
Bustamonte, 412 U.S. 218, 226 (1973).   
B. 
Defendant’s Arrest and Interview 
To effectuate Defendant’s arrest, ten agents surrounded him in 
three or four vehicles.  (Dkt. 94 at 24–27.)  They exited their vehicles with 
their guns drawn, pointed their guns at Defendant, identified themselves 
as FBI agents, and (at least one agent) yelled, “get down on the ground,” 
and “show your hands.”  (Dkt. 94 at 8, 26–28.)  The agents were wearing 
bulletproof vests with FBI placards on the front and back.  (Dkt. 94 at 9.)  
Defendant complied with the agents’ commands, and the agents 
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handcuffed him behind his back while he was on the ground.  (Dkt. 94 at 
9, 27.)  According to one of the agents, they returned their guns to their 
holsters once they had done so.  (Dkt. 94 at 9.) 
Agents placed Defendant in the back seat of one of their vehicles to 
interview him.  (Dkt. 94 at 9.)  They moved his cuffed hands from his back 
to his front.  (Dkt. 94 at 10.)  One agent testified she thought the cuffs 
were loose enough that they would not cause Defendant any pain.  (Id.)  
The agents began an audio recording and read Defendant his Miranda 
rights.  (Dkts. 94 at 10–13; Dkt. 145 at 2–3.)3  Defendant waived those 
rights orally and in writing.  (Id.) 
The interview lasted 42 minutes.  (Dkt. 91-1.)  Generally, the agents 
questioned Defendant about his personal background; his PPP loan 
application; the formation and operation of Kremkov; Defendant’s 
 
3 Defendant initially objected to the Magistrate Judge’s use of a 
transcript of the interview created by the Court.  (Dkt. 132 at 1–2.)  The 
Court filed the transcript on the docket and gave the parties an 
opportunity to object to its accuracy.  (Docket entry dated 12/30/2024.)  
The parties each object to certain portions of the transcript that either 
contain minor typographical errors, find something a speaker said 
unintelligible, or identify the wrong agent speaking.  (Dkts. 149; 151.)  
None of the errors affect the Court’s analysis, so the Court relies on the 
transcript.   
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expenditures after he obtained the PPP money; the formation, assets, and 
employees of the new company he allegedly created with the PPP money; 
and various pieces of property owned by Defendant that the United 
States intended to seize.  (Dkts. 91-1; 94 at 34–35; 145.)  Pertinent here, 
the agents specifically questioned Defendant about the number of 
employees he had at Kremkov and where the employees were located.  
(Dkt. 145 at 11.)  Defendant explained the company conducted mining 
activities primarily in Africa, so most of its employees lived there.  (Dkt. 
145 at 12–13.)  When asked how many employees Kremkov had in 2020 
and 2021, Defendant responded, “probably about 50.”  (Dkt. 145 at 14.)  
When asked how many Kremkov employees lived in the United States, 
Defendant said “honestly, off the top of my head, I don’t know.”  (Id.)  The 
agents continued this line of questioning, asking Defendant the highest 
number of employees he ever had.  (Id.)  Defendant said his business has 
a high turnover and he did not know off the top of his head.  (Id.)  One of 
the agents told him to “take a guess—a guesstimate.  I mean, is it 50?  Is 
it 100?  Is it 10?”  (Id.)  Defendant repeated he could not honestly answer 
the question.  (Id.) 
The agent then tried a different approach.  He asked Defendant how 
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much he pays his employees, to which Defendant responded, “It depends 
on how many people are, you know, digging and mining at the time.”  
(Dkt. 145 at 15.)  The agent then asked approximately how many people 
Defendant paid; Defendant again said, “Like I said, I don’t know off the 
top of my head because it’s a high turnover.”  (Id.)  The agent then said, 
“Just take a guesstimate.  I’m not going to lock you into it.  I mean, just 
a rough guesstimate.”  (Id.)  Defendant responded, “A rough guesstimate, 
maybe 50, 60.”  (Id.)   
Next, the agent returned to his questions about employee pay.  He 
asked Defendant how much he paid his employees on an annual or 
quarterly basis.  (Dkt. 145 at 15.)  He responded, “Like I said, those are 
hard figures and I don’t know off the top of my head.  So honestly I don’t 
want to answer that question.”  (Dkt. 145 at 15–16.)  The agent replied, 
“Are you sure you want to tell me this stuff because it’s not really going 
to help you?”  (Dkt. 145 at 16.)  Defendant said, “I know that, but I don’t 
want to tell you something which is wrong and then . . . it’ll appear as if 
I’m deceiving you or something.”  (Dkts. 145 at 16.)  The agent explained, 
“[t]his is a paper case . . . [a]nd it’s a follow-the-money case    . . . [a]nd 
the evidence shows that what you’re telling me . . . is bullshit.  So you’re 
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not going to help yourself out by giving us a bunch of bullshit[.]”  (Dkt. 
145 at 16–17.)  Defendant replied, “to the best of my ability, . . . I’ll be 
plain and honest with you.  Like when it comes to hard figures, I don’t 
want to,” to which the agent interrupted and said “I don’t need a hard 
figure, okay?”  (Dkt. 145 at 17.)  The agent and Defendant then discussed 
some tractor-trailers on the property subject to a seizure warrant, the 
PPP loan, money from the loan that Defendant channeled into his new 
business, and income Kremkov purportedly made and kept in foreign 
bank accounts.  (Dkt. 145 at 17–25.) 
About seventeen minutes into the interview, the agent told 
Defendant he did “not need [him] to cooperate,” and that “[t]he paper is 
what proves it.”  (Dkt. 145 at 25.)  The agent said: 
[W]e don’t need you to cooperate . . . like I said, I don’t know 
how clear to you I can be, okay?  The paper is what proves it.  
The paper and the flow of money . . . I don’t want to see you 
get in any more trouble than what you’re already in, that’s 
why I was clear to you and explained to you how you can help 
yourself in the federal system.  And I guarantee you[,] you 
speak to any 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. 
 
(Dkt. 145 at 25.)  Defendant then answered more questions about—
among other things—his attempted name change, his purchase of certain 
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property with PPP funds (including tractor-trailers), a payroll list he 
gave Chase Bank to obtain the PPP funds, and Kremkov’s operational 
history.  (Dkt. 145 at 26–52.)  He also signed a form giving agents 
permission to use his key fob to enter his garage and seize a car he owned.  
(Dkt. 145 at 52; Dkt. 92-2.) 
 
According to one of the agents, they briefly stopped recording the 
interview when they thought it was over but reactivated the recording 
device when Defendant said he had more questions for the agents.  (Dkt. 
94 at 14, 16.)  At that point, Defendant expressed concerns about how the 
agents conducted his arrest.  (Dkt. 145 at 55.)  He specifically said the 
agents could have come to his house, knocked on his door, and asked him 
to come out rather than arrest him with “M16s and AR-15s,” which he 
thought “was a little bit dramatic” and “actually scared [him].”  (Dkt. 145 
at 55–56.)  The agents told him it was standard procedure to protect 
officers.  (Dkt. 145 at 56–57.) 
 
One of the agents testified that Defendant appeared calm and alert 
throughout the interview and that everything he and the agents said was 
recorded.  (Dkt. 94 at 18.)  The agent also asserted that Defendant never 
said he wanted to end the interview, did not understand what the agents 
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said to him, wanted to speak to an attorney, or revoked his consent to 
talk to the agents without an attorney.  (Dkt. 94 at 17–18.) 
C. 
Discussion 
Defendant does not argue the agents failed to read him his Miranda 
rights, that he did not understand his rights, that he signed the consent 
form unwillingly, that he expressed any confusion about his rights, that 
he asked for counsel, or that he said he wanted to end the interview.  
Defendant even demonstrated some awareness about the investigatory 
process by saying to the agents that he “kn[e]w better than to lie to the 
FBI.”  (Dkt. 145 at 9.)  And he refused to answer some questions.  
Defendant also does not claim any of his personal characteristics made it 
harder for him to understand or exercise his rights.  Indeed, the interview 
shows Defendant speaks fluent English, graduated from college, worked 
for the Army, and maintained a pilot’s license.  (Dkt. 145 at 39, 41.)   
Rather, Defendant claims his waiver was involuntary for three 
reasons: (1) the nature of his arrest was so intimidating as to be coercive; 
(2) the agent’s statement that he would not “lock” Defendant into his 
answer about the number of employees violated the Miranda warning 
that anything he said could and would be used against him; and (3) the 
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agent’s statement that “any attorney” would tell him to cooperate 
“undermined” his right to silence and counsel.  (Dkts. 108 at 13–23; 123 
at 4.)   
1. 
Nature of Arrest 
 
Defendant says the fact that “[t]here were at least ten agents, who 
travelled to [his] location in three or four vehicles, . . . surrounded [him] 
with their vehicles and quickly exited their vehicles, . . . [and] all pointed 
their guns at [him],” could “reasonably have [had] a coercive impact on 
[him],” given the agents “interrogated [him] immediately afterward.”  
(Dkt. 123 at 4.)  The Magistrate Judge concluded the nature of 
Defendant’s arrest did not render his statements involuntary because the 
tone of his voice during the interview was “calm and conversational 
throughout” and because agents holstered their weapons during the 
interview.  (Dkt. 128 at 24–25.)  Defendant objects, arguing the Court 
should “take into account the nature of the arrest encounter and its 
impact on [Defendant,]” particularly given that he expressed his fear of 
the agents during the interview.  (Dkt. 132 at 4–5.)  The Court agrees 
with the Magistrate Judge. 
A large number of agents at the scene of an arrest “does not indicate 
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a level of intimidation or coercion sufficient to render [the defendant’s] 
waiver involuntary” if there is “no evidence that the agents at the scene 
‘employed any tactics that would augment the degree of coercion that is 
inherent in any arrest.’”  United States v. Vaughn, 2023 WL 4409541, at 
*7 (N.D. Ga. June 15, 2023).  In Vaughn, “four to eight agents” arrested 
the defendant during a vehicle stop.  Id.  While at least one of the officers 
initially had his gun drawn, “once [the defendant] was out of the vehicle,” 
he secured the gun in his holster.  Id.  The officers only detained the 
defendant for “about two hours,” and “the actual questioning of [the 
defendant] lasted no more than 40 minutes total.”  Id.   
Defendant’s arrest here is strikingly similar.  Although several 
agents had their guns drawn when they initially encountered Defendant, 
they returned their weapons to their holsters once they placed him into 
custody.  No one had a gun out during the interview.  Agents also moved 
Defendant’s cuffed hands from his back to his front, which—as far as the 
evidence shows—were loose enough not to cause him any pain.  And 
Defendant’s interview only lasted for a little over 40 minutes, so it was 
not that long.  
That one of the agents told Defendant to get on the ground and 
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show his hands does not change the analysis.  Officers undoubtably do 
that during the initial encounter for their own safety and for a suspect’s 
safety.  (One of the agents explained that to Defendant during the 
interview.)  To hold such conduct excessive would render even the most 
mundane arrests so coercive as to render any subsequent waiver 
involuntary.  And there is no evidence it had any such impact on 
Defendant here.  Granted, Defendant said during the interview that the 
agents’ guns scared him and that the arrest was “a little bit dramatic.”  
But—as the Magistrate Judge noted—Defendant’s tone was calm and 
conversational throughout the interview, including when he told the 
agents they had scared him.  In fact, when he said the agents could have 
simply come to his house to arrest him, he even chuckled a bit.  He did 
not sound like he was so shaken that he felt compelled to waive his 
Miranda rights.  At most, he simply sounded annoyed at how the agents 
conducted the arrest.  So, the Court concludes the nature of Defendant’s 
arrest was not so intimidating as to coerce his waiver. 
2. 
Agent’s “Promise”  
 
Defendant contends the agent’s statement that he would not “lock” 
him into his answers about the number of Kremkov employees renders 
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those answers inadmissible because the agent’s statement was at odds 
with the Miranda warning that “anything a suspect says during the 
custodial interrogation can and will be used against him in court.”  (Dkt. 
108 at 13.)  He also says the agent’s promise “distorted [his] ability to 
weigh the pros and cons of making a statement and going with the 
balance as it appeared at the time . . . [and] distorted [his] ability to weigh 
the consequences of making the statement.”  (Dkt. 108 at 19.)  The 
Magistrate Judge concluded the agent’s statement “was not an express 
assurance that [his] response would not be used against him” and that 
the rest of the interview shows Defendant understood “giving incorrect 
information would be detrimental to him.”  (Dkt. 128 at 27–28.)  
Defendant objects, saying the agent “contradicted” the Miranda 
warnings, “coaxed” him into answering his question about the number of 
employees, and “distorted” his ability to weigh the pros and cons of 
answering that question.  (Dkt. 132 at 5–6.)  Defendant is wrong. 
As the Magistrate Judge explained, the agent’s statement—when 
examined in context—is not a promise that Defendant’s answer would 
not be used to prosecute him.  The agent told Defendant several times 
that he did not need Defendant to cooperate to make a case against him 
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and that they had enough physical evidence to convict him—so 
Defendant did not need to lie.  Indeed, Defendant said he knew he might 
face consequences for lying to the FBI.4   Almost right after he told the 
agent Kremkov had about 50 or 60 employees in the United States during 
the time in question, Defendant said, “I don’t want to tell you something 
which is wrong and then . . . it’ll appear as if I’m . . . deceiving you or 
something.”  (Dkt. 145 at 16.)  Clearly, then, Defendant knew the answer 
he gave the agent might be used against him, and he chose to say it 
anyway.  In context, the more natural way to read and interpret the 
agent’s statement—and the way the circumstances suggest Defendant 
interpreted the statement—is that the agent was telling Defendant he 
 
4 Defendant suggests this fact actually cuts in his favor, because the 
notion the United States could prosecute him without his statement 
“bolster[s] rather than limit[s] the significance of [the agent] telling 
[Defendant] that he would not lock him into an answer regarding the 
maximum number of employees he had at Kremkov.”  (Dkt. 132 at 6–7.)  
According to Defendant, that assertion made it “all the more believable 
that [the agent] would not need to use” Defendant’s statement to 
prosecute him.  (Dkt. 132 at 7.)  But that argument ignores the fact that 
Defendant made it clear during the interview that he knew he might get 
into more trouble if he lied.  In the face of that, the Court simply does not 
buy the argument that the agent’s statement made Defendant believe he 
could say whatever he wanted regardless of its truth without facing any 
consequences. 
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could ballpark a number rather than give a precise count, and that 
Defendant could later change his answer if he wanted.  Indeed, that is 
the natural interpretation of the exchange—the agents asking him to 
“take a guess,” saying that they would not “lock” him into that guess, and 
then reiterating they were asking for a “rough guesstimate.”  (Dkt. 145 
at 14–15.)  Defendant understood that, saying he would give “a rough 
guesstimate?  Maybe 50, 60.”  (Id.)  Neither the agent’s statements nor 
Defendant’s response suggests there was any confusion about the agent’s 
request that Defendant provide an estimate that he could revise at a later 
time.  As a result, this conversation could not possibly have caused 
Defendant to believe the agent was rescinding the warning that his 
statements could be used against him.   
In arguing otherwise, Defendant cites United States v. Castor, 598 
F. App’x 700 (11th Cir. 2015), United States v. Lall, 607 F.2d 1277 (11th 
Cir. 2010), and Hart v. Att’y Gen. of Fla., 323 F.3d 884 (11th Cir. 2003), 
for the proposition that a defendant’s statement is involuntary when it is 
offered in response to a promise that the statement will not be used 
against the defendant by the officers or anyone else.  (Dkt. 132 at 6–7.)  
As the Magistrate Judge correctly concluded, however, the agent’s 
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statement here was “qualitatively different from the statements made” 
in those cases.  (Dkt. 128 at 26.)  First, in Castor, the officer “misled” the 
defendant by “repeatedly” telling the defendant he could keep him out of 
jail if he cooperated and that he “could not charge [the defendant] with 
any additional” drug crimes.  598 F. App’x at 701, 703–04.  Given these 
unequivocal promises, the Eleventh Circuit concluded the defendant’s 
decision to waive his Miranda rights was “the product of [the officer’s] 
deception.”  Id.  Second, in Lall, the officers told the defendant that “any 
information [he] shared with the police would not be used to prosecute 
him,” and that the officers weren’t “going to charge him with any of this.”  
607 F.3d at 1281–82.  The Eleventh Circuit again found the officers’ 
promises not to charge the defendant with any crimes based on his 
statement rendered that statement involuntary, given that it impeded 
the defendant’s understanding of “the nature of his right against self-
incrimination or the consequences that would result from waiving it.”  Id. 
at 1284 (internal quotation marks and citation omitted).  Third and 
finally, in Hart, the officer told the defendant that “honesty wouldn’t hurt 
him.”  323 F.3d at 894.  The Eleventh Circuit held that phrase “is simply 
not compatible with the phrase ‘anything you say can be used against you 
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in court.’”  Id.  
The agent’s statement here is nothing like the ones in Castor, Lall, 
and Hart.  In those cases, the interrogating officers made unequivocal 
promises that the statements the defendants gave would not lead to 
criminal liability or otherwise hurt them.  They were totally inconsistent 
with the warnings the officers had given the defendants under Miranda.  
In other words, “‘semantic technicalities aside,’” the “‘only plausible 
interpretation’” of the statements in those cases “was that the 
information the defendants provided would not be used against them by 
the officers or anyone else.”  United States v. Santacruz, 2022 WL 
5239533, at *6 (N.D. Ga. July 22, 2022) (quoting Hart, 607 F.3d at 1287)).  
As already discussed, the agent’s statement here—when viewed in 
context—simply meant that the agent was looking for an estimate from 
Defendant that Defendant could later revise.  Even if the true purpose of 
the agent’s statement was to later show an inconsistency between 
Defendant’s answer and his PPP application (which showed a much 
larger number of employees), “trickery and deceit are prohibited only to 
the extent they prevent the defendant ‘from understanding the nature of 
his rights and the legal consequences of waiving them.’”  United States v. 
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Santacruz, 2022 WL 4554420, at *2 (N.D. Ga. Sept. 29, 2022) (quoting 
United States v. Farley, 607 F.3d 1294, 1328 (11th Cir. 2010)).  Given the 
totality of the circumstances, nothing the agent said—even if meant as 
trickery—prevented Defendant from understanding his right to decline 
to answer the question or the consequences he might face in doing so.  So, 
the statement does not render his waiver involuntary. 
D. 
Statement About Attorney and Cooperation 
Defendant says the agent’s statement that “any attorney” would 
advise him to cooperate and truthfully answer the agent’s questions 
rendered his subsequent statements involuntary because, among other 
things, it “undermined the right to counsel.”  (Dkt. 108 at 21.)  While the 
Magistrate Judge admonished the agent’s “imputation of a prospective 
attorney’s advice,” she concluded the agent’s statement was not illegally 
coercive because it did not mislead Defendant as to the nature of his 
rights or the consequences he might face for waiving them.  (Dkt. 128 at 
30.)  Specifically, the Magistrate Judge explained the rest of the 
interview shows Defendant understood and—in some instances—even 
continued to exercise his right not to answer questions without an 
attorney.  (Dkt. 128 at 30–31.)  Defendant objects, arguing the agent’s 
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statement “realistically had an impact on the degree to which 
[Defendant] engaged in the interrogation and made statements.”  (Dkt. 
132 at 8.)  The Court agrees with the Magistrate Judge. 
Immediately after the agent made the statement about a 
prospective attorney’s advice, Defendant again said that he did not want 
to appear deceitful, conveying his understanding that his statements 
could be used against him.  (Dkt. 145 at 26.)  He also displayed his 
understanding that he could continue to exercise his Miranda rights—
including the right not to answer questions without counsel present—
when he subsequently refused to answer other questions about 
Kremkov’s payroll list.  (Dkt. 145 at 43–44 (“Honestly, I refrain from 
answering that question. . . . I don’t want to answer that question. . . . I 
refrain from answering that question.”).)  Clearly, Defendant knew he 
could refuse to cooperate regardless of what the agent said, and he did 
just that.  So, the Court cannot say the agent’s statement misled 
Defendant about his rights.   
In arguing otherwise, Defendant says the facts here “are not 
materially distinguishable from those in” Hart and another case, United 
States v. Beale, 921 F.2d 1412 (11th Cir. 1991), where courts found an 
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agents’ statements about a lawyer’s advice rendered the defendants’ 
waivers involuntary.  (Dkt. 132 at 8.)  Defendant is wrong.  First, in Hart, 
the defendant “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.”  Farley, 607 F.3d at 1329 (citing 
Hart, 323 F.3d at 894–95).    Defendant did not exhibit any similar 
confusion here.  Indeed, as just discussed, Defendant understood his 
rights and exercised them.  Second, in Beale, the defendant waived his 
Miranda rights only after the agent told him doing so would not hurt him, 
indicating the agent “mis[led] [him] concerning the consequences of 
relinquishing his right to remain silent.”  921 F.2d at 1435.  Here, 
Defendant waived his rights before the agent made the statement, and 
he made incriminating statements before and after.  So, anything he said 
before the agent’s statement could not have been coerced, and the fact he 
continued to give incriminating answers (oftentimes related to his earlier 
admissions) afterwards suggests the agent’s statement did nothing to 
coerce those later answers.  Indeed, as the Magistrate Judge explained, 
most of Defendant’s answers after the agent’s statement “primarily 
expounded upon topics he had already disclosed,” such as the tractor-
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trailers and property he allegedly bought with the PPP money, the 
vehicle in his garage agents intended to seize, his name change, 
Kremkov’s operational history, and Kremkov’s payroll list.  (Dkts. 128 at 
32; 145 at 27–58.)  And, as already discussed, Defendant refused to 
answer some questions after the agent’s statement.  So, considering the 
totality of the circumstances, the agent’s statement did not render 
Defendant’s waiver involuntary.5 
 
5 Somewhat relatedly, Defendant argues there might have been an 
unrecorded discussion between the agent and Defendant, during which 
the agent emphasized that Defendant’s cooperation could help him, 
enhancing the coercive nature of the interview.  (Dkt. 132 at 2.)  He points 
out that, even though the agent told Defendant—audible in the 
recording—“I was clear to you and explained to you how you can help 
yourself in the federal system,” there is nowhere else in the recording 
where the agent says anything to Defendant about helping himself in the 
federal system.  (Id.)  The Magistrate Judge rejected this argument, 
concluding Defendant “fails to present sufficient evidence” of this 
discussion and essentially “requests that inferences be drawn . . . from 
utter speculation.”  (Id. (internal quotation marks and citation omitted).)  
Defendant says the Magistrate Judge is wrong because—given the 
absence of the agent’s discussion about the federal system anywhere else 
in the recording—“that discussion and advice . . . must have taken place 
at [the] time when the discussion . . . was not being recorded.”  (Dkt. 132 
at 2.)  But that ignores that fact that no one asked the agent what he 
meant by his statement.  Mere speculation in the absence of evidence is 
not evidence.  None of this really matters.  Even if the agent emphasized 
the helpfulness of Defendant’s cooperation during the unrecorded 
discussion, that does not change the Court’s conclusion that Defendant’s 
waiver was voluntary.  Again, the discussion would have taken place 
after Defendant already waived his rights, he continued to pick and 
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IV. 
Motion to Strike Surplusage 
Defendant moves to strike from the indictment references to the 
alias Karl Lucius Delano because there is no evidence that his “name was 
ever formally changed.”  (Dkt. 81 at 2–3.)  According to Defendant, any 
references to the alias are prejudicial and “unnecessary to any of the 
essential elements of the offenses charged.”  (Dkt. 81 at 2.)  The 
Magistrate Judge concluded the alias allegations are relevant because 
the indictment claims Defendant used the alias to try to conceal his 
crimes.  (Dkt. 128 at 36–37.)  She also found that the United States 
presented evidence that Defendant successfully changed his name.  (Dkt. 
128 at 37.)  Defendant objects in conclusory fashion, saying only that he 
“objects to the Magistrate’s denial of his motion to strike surplusage from 
the indictment, which requests that [the alias] be stricken thr[o]ughout 
the indictment.”  (Dkt. 132 at 9.)  The Court overrules the objection. 
To start, Defendant’s objection is improper, and the Court could 
simply disregard it.  As already discussed, in objecting to a Magistrate 
 
choose when he would answer the agent’s questions, and nothing 
suggests the agent’s emphasis on Defendant’s cooperation confused him 
about his rights or the consequences of waiving them. 
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Judge’s conclusions, a party “must specifically identify the portions of the 
[R&R] to which objection is made and the specific basis for objection.”  
McCullars, 825 F. App’x at 694 (emphasis added).  Where a party 
provides only “conclusory objections” to the R&R and does not 
“specifically [identify] the findings of the R&R that they object to . . . [t]he 
Court is not required to consider the[] objections.”  United States v. Cobb, 
2017 WL 3225063, at *1 (N.D. Ga. July 28, 2017).  Even assuming the 
Court must review the Magistrate Judge’s findings for clear error, the 
Court sees no such error here.  
Rule 7 of the Federal Rules of Criminal Procedure provides that, 
“upon the defendant’s motion, the court may strike surplusage from the 
indictment or information.”  Fed. R. Crim. P. 7(d).  To successfully strike 
surplusage, the defendant must show two things: (1) the allegations are 
“not relevant to the charge,” and (2) the allegations “are inflammatory 
and prejudicial.”  United States v. Awan, 966 F.2d 1415, 1426 (11th Cir. 
1992) (internal quotation marks and citation omitted).  This is an 
“exacting standard.”  Id. (internal quotation marks and citation omitted).  
Defendant fails on both prongs. 
First, the alias allegations are clearly relevant to the charged 
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crimes.  As the Magistrate Judge explained, the indictment alleges 
Defendant “petitioned to change his name . . . four months after he 
fraudulently received over $9.5 million in PPP proceeds in furtherance of 
his scheme to conceal the crime via money laundering,” and that he “used 
the bank fraud proceeds to purchase real property under the [alias], but 
continued to deposit bank fraud proceeds into accounts under [his 
name].”  (Dkt. 128 at 36–37.)  So regardless of whether Defendant 
officially changed his name to Karl Lucius Delano, the United States 
claims his use of that alias was part and parcel of his overall scheme to 
illegally receive and conceal his use of the PPP money.  As for Defendant’s 
only contrary argument before the Magistrate Judge—i.e., that he never 
legally adopted the alias—the United States provided evidence a court 
did grant his name-change petition.  (Dkts. 83-2; 128 at 37.)  So, 
Defendant fails to show the alias allegations are irrelevant to the 
charges. 
Nor can Defendant show the allegations are unduly prejudicial.  
Like the Magistrate Judge explained, Defendant “through his own 
volition, petitioned to have his name legally changed,” supposedly 
“because of his experiences with others mispronouncing it.”  (Dkt. 128 at 
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37.)  He can argue this at trial.  And the United States can counter that 
argument with evidence Defendant changed his name to further his 
criminal scheme.  This is not a case where the United States is 
attempting to use Defendant’s alias to “indicate to the jury that people 
who use aliases are inherently suspect.”  See United States v. Wilkerson, 
456 F.2d 57, 59 (6th Cir. 1972).  Rather, the indictment directly ties the 
alias to the charged conduct.  So Defendant fails the second prong, too.  
The Court denies his motion to strike surplusage. 
V. 
Motion to Sever   
The indictment charges Defendant with ten counts: seven counts of 
fraud based on his acquisition and expenditure of the PPP funds; one 
count of aggravated identity theft also related to his acquisition of the 
PPP loan; and two counts of wire fraud related to his allegedly filing 
fraudulent tax documents.  (Dkt. 110.)  Specifically, the tax-related 
counts allege Defendant “electronically filed with the IRS not just one but 
two fraudulent U.S. individual income tax returns . . . for tax year 2020, 
both of which reported fictitious wages, withholdings, and nonpassive 
losses from Kremkov Industries.”  (Dkt. 110 ¶ 35.)  Defendant 
purportedly fraudulently claimed more than $6 million in tax refunds.  
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(Dkt. 110 ¶¶ 36–37.) 
Defendant moves to sever and separately try the tax-related counts.  
(Dkt. 115.)  He contends trying the tax charges with those related to his 
acquisition and expenditure of the PPP money would create “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.”  (Dkt. 115 at 4.)  According to Defendant, “[a] single trial of all 
the counts would essentially allow the [United States] to present other-
crimes evidence without satisfying the requirements of [Federal Rule of 
Evidence] 404(b) and without being subjected to the exclusionary 
discretion provided under Rule 403.”  (Id.)  The Court disagrees.   
Rule 8 of the Federal Rules of Criminal Procedure says an 
indictment “may charge a defendant in separate counts with 2 or more 
offenses if the offenses charged . . . 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.”  Fed. R. Crim. P. 8(a).  If 
a joinder of offenses in the indictment “appears to prejudice a defendant 
. . . the court may order separate trials of counts, . . . or provide any other 
relief that justice requires.”  Fed. R. Crim. P. 14(a).   
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Defendant essentially argues that the tax charges are so unrelated 
to his alleged scheme to fraudulently obtain and spend PPP funds that a 
jury could not “‘compartmentalize evidence’” from each of the “separate 
alleged fraud schemes.”  (Dkt. 115 at 2–4 (quoting United States v. Lewis, 
787 F.2d 1318, 1322 (9th Cir. 1986).)  And he says the jury’s inability to 
do so will prejudice him given “the ‘highly prejudicial nature of other-
crimes evidence.’”  (Dkt. 115 at 3 (quoting United States v. Jones, 67 F.3d 
320, 322 (D.C. Cir. 1995).)  But the indictment treats the conduct 
underlying the tax counts as a continuation of Defendant’s overall 
scheme to illegally acquire and spend PPP funds.  Defendant’s 
subsequently filing tax returns for the sham business he used to obtain 
those funds shows his attempts to maximize the amount of money he 
fraudulently received.  And the evidence the United States will have to 
present to prove the tax charges largely—if not entirely—overlaps with 
the evidence it must use to prove the other charges.  Indeed, Defendant 
could not have filed those returns showing Kremkov’s fake numbers had 
he not fraudulently created that business to receive the PPP funds.  
Defendant’s conclusory argument that the tax counts constitute a 
different scheme does not change any of that.  The Court denies 
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Defendant’s motion to sever. 
VI. 
Conclusion 
The Court OVERRULES Defendant’s Objections (Dkt. 132) and 
ADOPTS the Magistrate Judge’s R&R (Dkt. 128).  The Court DENIES 
Defendant’s Motion and Amended Motion to Suppress (Dkts. 44, 88), 
Motion to Strike Surplusage (Dkt. 81), and Motion for Severance of 
Counts (Dkt. 115).     
SO ORDERED this 13th day of January, 2025. 
 
 
 
 
 
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1 (1 
M I C H " K E L L . B R O W N 
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