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RESPONSE as to Carl Delano Torjagbo filed by Carl Delano Torjagbo re: 160 MOTION in Limine… — USA v. Torjagbo (Dkt. 166)

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Court	U.S. District Court for the Northern District of Georgia
Filed	2025-02-11

U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 166 · 2025-02-11 · Docket on CourtListener

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A defense response to the government's motions in limine in United States of America v. Carl Torjagbo, Criminal Action No. 1:22-cr-00171-MLB-RDC, in the U.S. District Court for the Northern District of Georgia, filed February 11, 2025 as Document 166. It answers, section by section, the government's consolidated motions in limine filed January 28, 2025 at Doc. 160. The response opposes barring evidence of the lender's and the Small Business Administration's conduct on the Paycheck Protection Program loan application, states that the defense will not offer penalty evidence, and reserves the right to offer character evidence under Federal Rule of Evidence 404(a)(2)(A). It argues that evidence of the defendant's immigration and financial status is relevant context. The 12-page response also addresses reciprocal discovery and impeachment with investigative reports under Rule 613(b).

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA
)
CRIMINAL ACTION

)
1:22-CR-00171-MJB-RDC
V.

)

CARL TORJAGBO

)

RESPONSE TO THE GOVERNMENT’S MOTION IN LIMINE

COMES NOW, the Defendant, CARL TORJAGBO, by and through
undersigned counsel, and hereby files this response to the government’s
consolidated motions in limine filed on January 28, 2025 (Doc. 160):
I.
The government’s request to shield the jury from evidence of the
Paycheck
Protection
Program
Lender’s
or
Small
Business
Administration’s conduct.

The government moves to prohibit the defense from introducing any
evidence or argument of any claimed negligence, mismanagement or lack of
concern on the part of the lender or the United States Small Business
Administration (SBA). (Doc. 160 at 2-3). It argues that attempts to shift the blame
to the lender or the SBA would be improper and should be prohibited. (Id. at 3).
Mr. Torjagbo is aware that an alleged victim’s negligence is not a defense to
criminal conduct. See United States v. Kreimer, 609 F.2d 126, 132 (5th Cir. 1980). Mr.
Torjagbo, however, has the Constitutional right to “a meaningful opportunity to
Case 1:22-cr-00171-MLB-RDC Document 166 Filed 02/11/25 Page 1 of 12

present a complete defense.” United States v. Nunez, 1 F.4th 976, 991 (11th Cir.
2021).
The government has charged Mr. Torjagbo with allegedly submitting to
Chase Bank a fraudulent PPP loan application. (Doc. 110 ¶ 7). The bank’s and
SBA’s conduct in relation to the PPP loan application submitted is therefore
relevant and intrinsic to the government’s bank fraud charge. This evidence is
relevant to provide the jury with a complete story of what occurred here, and the
exclusion of such evidence may color the jury’s assessment of the material facts of
the case. See United States v. Hurn, 368 F.3d 1359, 1367 (11th Cir. 2004) (explaining
that the government’s selective presentation of truthful evidence can be unfairly
prejudicial to a defendant and in these situations, “the defendant has the right to
introduce additional evidence to dispel this unjustified taint, even if that evidence
does not directly or indirectly bear on a particular element of an offense.”).
While the defense does not intend to argue at trial that Chase Bank or the
SBA were allegedly at fault, the jury deserves to be presented with the manner in
which the loan was applied for, including the representations in the loan
application. The jury is entitled to context. It should therefore be allowed to
consider all the circumstances relating to the government’s charges, the PPP loan,
and the process through which it was issued and approved by Chase Bank and the
SBA. The jury is entitled to draw their own conclusions from this evidence. Should
Case 1:22-cr-00171-MLB-RDC Document 166 Filed 02/11/25 Page 2 of 12

the government believe that Mr. Torjagbo is shifting fault to Chase Bank or the
SBA for issuing the loan, the government must object to specific evidence during
trial. A broad pretrial ruling is not warranted.
II.
The government’s request to exclude certain evidence related to
penalties, character evidence, and alleged “jury nullification.”

a. Penalty evidence

The government asks the Court to preclude the defense from introducing
evidence relating to the potential penalties and collateral consequences Mr.
Torjagbo may face if convicted. (Doc. 160 at 4-5). Mr. Torjagbo is aware of the law
disallowing the introduction of penalty evidence and the collateral consequences
of a conviction and has no intention to introduce such evidence or argument at
trial.
b. Character evidence

The government seeks to preclude Mr. Torjagbo from introducing evidence
that he possessed “good character.” (Id. at 9). The defense has not yet determined
whether it will introduce any evidence of other conduct by Mr. Torjagbo at trial,
but Mr. Torjagbo retains the right to introduce evidence of his pertinent character
traits under Federal Rule of Evidence 404(a)(2)(A). See United States v. Hough, 803
F.3d 1181, 1191 (11th Cir. 2015) (“Evidence of a criminal defendant’s ‘pertinent’
character trait—such as honesty and truthfulness in a fraud case—is
admissible.”)(citing FRE 404(a)(2)(A)); see also United States v. Hewitt, 634 F.2d 277,
Case 1:22-cr-00171-MLB-RDC Document 166 Filed 02/11/25 Page 3 of 12

280 (5th Cir. 1981) (“A general trait of character, such as lawfulness, is no less
pertinent for being general.”)1
The government notes the general proposition under Rule 404(a)(1) that
“[e]vidence of a person’s character or character trait is not admissible to prove that
on a particular occasion the person acted in accordance with the character or trait.”
However, subsection 404(a)(2)(A) provides for certain exceptions in a criminal
case. Most notably for this case, it states, “A defendant may offer evidence of the
defendant’s pertinent [character] trait.” FRE 404(a)(2)(A). Mr. Torjagbo
understands that Rule 405(a) provides that evidence may be presented in the form
of testimony about his reputation or testimony in the form of an opinion. FRE
405(a). Furthermore, he also understands that Rule 405(b) allows the introduction
of a person’s character or trait by specific instances of a person’s conduct when his
character or character trait is an essential element of a charge, claim, or defense.
c. Jury nullification

Under the guise of preventing Mr. Torjagbo from presenting arguments
related to jury nullification, the government argues that Mr. Torjagbo should not
be allowed to present evidence of his immigration and naturalization status,

1 Decisions of the Fifth Circuit issued prior to the close of business on September
30, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard,
661 F.2d 1206 (11th Cir. 1981).

Case 1:22-cr-00171-MLB-RDC Document 166 Filed 02/11/25 Page 4 of 12

including his reasons for immigrating to the United States. (Doc. 160 at 11). This
broad category of evidence does not constitute or encourage jury nullification.
Indeed, this evidence—i.e., that Mr. Torjagbo legally came to the United States
from Ghana on a student visa, and he continued to work in the United States after
college, and he eventually became a citizen—is relevant to present the jury with
important context regarding the facts of the case and would dispel any unfair
prejudice that Mr. Torjagbo may incur based on assumptions that he is not a
United States citizen based on his name, accent, or physical appearance. This
evidence is also relevant to showing Mr. Torjagbo’s eligibility to apply for a PPP
loan and his obligation to submit tax returns to the IRS. The government’s request
to exclude this relevant evidence and related argument should be denied.
The government also argues that Mr. Torjagbo should not be allowed to
preclude evidence regarding his financial status. The indictment charges Mr.
Torjagbo with financial crimes — bank fraud, wire fraud, and money laundering.
Under these circumstances, presentation of evidence regarding Mr. Torjagbo’s
financial status does not encourage jury nullification, and the government’s
request to preclude such evidence should be denied.
These two categories of evidence are admissible because they are relevant
and would not be offered for jury nullification purposes. The heart of the issue
raised in the government’s motion is not whether the evidence could cause jury
Case 1:22-cr-00171-MLB-RDC Document 166 Filed 02/11/25 Page 5 of 12

nullification, but whether the evidence is relevant. A case which the government
cites, United States v. Funches, 135 F.3d 1405 (11th Cir. 1998), is helpful to
demonstrate this point. The defendant in Funches argued that “he had a due
process right to present evidence the only relevance of which is to inspire a jury to
exercise its power of nullification.” Id. at 1408. The court held that it is not
reversible error “when evidence, otherwise inadmissible under Rule 402 of the Federal
Rule of Evidence, is excluded, even if the evidence might have encouraged the jury
to disregard the law and to acquit the defendant.” Id. at 1409 (emphasis added). In
other words, relevant evidence is admissible—even if there is a risk of jury
nullification—so long as it has other relevant purposes. If evidence only goes to
jury nullification, then it becomes inadmissible. Thus, even the other categories the
government seeks to preclude, such as familial obligations or medical conditions,
would still be admissible so long as they are not solely offered for the purposes of
jury nullification.
III.
The defense is aware of and will oblige by its Rule 16 obligations.
The government asks the Court to exclude any evidence which the defense
does not provide in reciprocal discovery pursuant to Federal Rule of Criminal
Procedure 16. (Doc. 160 at 12). Local Criminal Rule 16.1 provides that “[u]nless
otherwise ordered by the Court, the defendant shall be required make
Case 1:22-cr-00171-MLB-RDC Document 166 Filed 02/11/25 Page 6 of 12

discoverable materials requested by government available for inspection and
copying no later than twenty-one (21) days prior to trial.” N.D. Ga. L. Cr. R. 16.1.
IV.
The defense is aware of the rules of impeachment.
The government asks the Court to preclude the defense from “(a) from
cross-examining or seeking to impeach witnesses with non-verbatim reports that
have not been signed or adopted by the witness; and (b) from quoting, publishing,
or suggesting to the jury that the contents of an investigative report is a statement
of the witness.” (Doc. 160 at 14). The right to impeach witnesses through cross-
examination emanates from the Confrontation Clause. United States v. Carter, 776
F.3d 1309, 1328 (11th Cir. 2015). The right to confrontation is satisfied when “the
cross-examination permitted exposes the jury to facts sufficient to evaluate the
credibility of the witness and enables defense counsel to establish a record from
which he properly can argue why the witness is less than reliable.” Id.
Federal Rule of Evidence 613 allows for cross examining a witness regarding
a prior inconsistent statement. Following an amendment effective December 1,
2024, Rule 613(b) states, “Unless the court orders otherwise, extrinsic evidence of
a witness’s prior inconsistent statements may not be admitted until after the
witness is given an opportunity to explain or deny the statement and an adverse
party is given an opportunity to examine the witness about it.” The advisory
committee notes explain that “[r]ule 613(b) has been amended to require that a
Case 1:22-cr-00171-MLB-RDC Document 166 Filed 02/11/25 Page 7 of 12

witness receive an opportunity to explain or deny a prior inconsistent statement
before the introduction of extrinsic evidence of the statement.” FRE 613, Advisory
Committee Notes, 2024 Amendments (emphasis in original). Thus, the foundation
for impeaching the witness regarding the prior statement requires that the witness
be presented with the statement while testifying. The defense is permitted to
cross-examine the witnesses on whether they made certain statements that are
noted in an investigative report. Afterward, the defense is permitted to examine
case agents who authored those reports about the circumstances of any interviews
with the witnesses and any inconsistencies between their reports and any
testimony elicited at the trial.
The Eleventh Circuit has explained:
The law is clear that if a witness has denied making a statement or has
failed to remember it, the making of the statement may be proved by
another witness. Williamson v. United States, 310 F.2d 192, 199 (9th Cir.
1962) (‘The answer of a witness that he does not remember having
made a prior statement is as adequate for impeachment as a flat
denial.’)

United States v. Billue, 994 F.2d 1562, 1565-66 (11th Cir. 1993) (emphasis in original)
(citations omitted). In Billue, the defendant was charged with possessing a firearm
as a convicted felon. Id. at 1563. The gun at issue was one that had been sold to a
pawn shop in Billue’s name. Id. at 1563-64. At trial, the government called the
pawn shop owner as a witness. Id. at 1565. The pawn shop owner testified that he
could not recall whether a third person was involved in the sale. Id. The
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government sought to impeach his statement by asking him if he previously told
an ATF agent that Billue was alone when Billue sold the firearm to the pawn shop.
Id. The pawn shop owner testified that he could not remember what he told the
agent. Id. The trial court allowed the government to call the agent to testify that
the pawn shop owner had told him Billue was the person who had sold the firearm
to the pawn shop, that Billue was alone when he did so, and that the pawn shop
owner did not say anything about a third person. Id. The Eleventh Circuit held
that the trial court properly admitted impeachment evidence from the agent to
contradict the pawn shop owner’s testimony that he could not recall what he had
said to the agent. Id. at 1566.

Less than two months before Billue, the Eleventh Circuit held in United States
v. Saget, 991 F.2d 702, 710 (11th Cir. 1993), that “a witness may not be impeached
with a third party’s characterization or interpretation of a prior oral statement
unless the witness has subscribed to or otherwise adopted the statement as his
own.”2 Id. at 710. During the trial, defense counsel attempted to impeach a witness
with
prior
inconsistent
statements
he
had
made
to
FBI
agents.
In doing so, defense counsel read directly from an agent’s summary and asked if

2 Not all federal circuits require that the witness adopt the investigative report or
summary before it may be used for impeachment. See United States v. Diaz-Colon,
640 F.Supp.3d 219, 222 (D. Puerto Rico 2022) (noting that the First Circuit has
rejected the requirement of adoption by a witness-declarant and citing United
States v. Catalan-Roman, 585 F.3d 453, 463 (1st Cir. 2009)).
Case 1:22-cr-00171-MLB-RDC Document 166 Filed 02/11/25 Page 9 of 12

the statement reflected what the witness told the agent. Id. The Eleventh Circuit
said that, in effect, the attorney was introducing extrinsic evidence to the jury of
the witness’ prior inconsistent statement via the FBI agent’s summary. Id. The
district court sustained an objection to the use of the summary prepared by the
agent without the witness having adopted the statements as his own. Id.
While holding that the district court had properly sustained the objection,
the Eleventh Circuit noted that the “the district court merely disapproved of the
method [of impeachment] employed by defense counsel and held him to the
procedural requirements of establishing the proper foundation.” Id. The Eleventh
Court observed that defense counsel was not prevented from impeaching the
witness, as later in the trial he “was able to effectively impeach [the witness’s]
testimony by questioning the FBI agent about inconsistences between [the
witness’s] testimony at trial and prior oral statements he made to the agent, which
were contained in the summary.” Id. Moreover, the defendant was given an
opportunity to recall the witness to cross-examine him about the inconsistencies
between his testimony and prior statements, although he declined to do so. Id. at
710-711.
Mr. Torjagbo asks that he be allowed to inquire of the trial witnesses
whether they have been interviewed by law enforcement and to ask the witnesses
about the substance of any statements given. See, e.g., United States v. Cochran, No.
Case 1:22-cr-00171-MLB-RDC Document 166 Filed 02/11/25 Page 10 of 12

4:14-CR-22-01-HLM, 2014 WL 12695800, *5 (N.D. Ga. Nov. 17, 2014). If the
witness’s statement is inconsistent with the investigative report, Mr. Torjagbo asks
that he be allowed to call the agent who conducted the interview as a witness and
inquire about the statement, including the manner in which it was taken and any
inconsistencies with the witness’s prior statement. See id. Mr. Torjagbo also
submits that he should be allowed to introduce the content of the investigative
report or FBI-302 if, during the testimony of the witness-declarant, a foundation is
established that the witness-declarant adopted the substance of the report or 302.3
CONCLUSION
WHEREFORE, Mr. Torjagbo asks the Court to rule on the government’s
motion in limine consistent with the objections noted above.

3 The government asserts in footnote 6 of its motion in limine that investigative
reports are not discoverable under the Jencks Act. However, an investigative
report or FBI-302 may constitute Jencks material for a testifying law enforcement
officer who authored the report. United States v. Jordan, 316 F.3d 1215, 1252 (11th
Cir. 2003).

Case 1:22-cr-00171-MLB-RDC Document 166 Filed 02/11/25 Page 11 of 12

Dated: This 11th day of February, 2025.

Respectfully Submitted,

/s/ Kendal D. Silas

Kendal D. Silas

Georgia Bar No. 645959

/s/ Vidhi S. Joshi

Vidhi S. Joshi

Georgia Bar No. 856380

Attorneys for Mr. Torjagbo

Case 1:22-cr-00171-MLB-RDC Document 166 Filed 02/11/25 Page 12 of 12

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RESPONSE as to Carl Delano Torjagbo filed by Carl Delano Torjagbo re: 160 MOTION in Limine… — USA v. Torjagbo (Dkt. 166)

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