Reply Brief as to Carl Delano Torjagbo filed by USA — USA v. Torjagbo (Dkt. 172, N.D. Ga. No. 1:22-cr-00171)

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U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 172 · 2025-02-25 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
UNITED STATES OF AMERICA 
v. 
CARL TORJAGBO 
Criminal Indictment 
 
No. 1:22-CR-171-MLB-RDC 
 
 
GOVERNMENT’S REPLY IN SUPPORT OF ITS MOTIONS IN LIMINE [160] 
The United States of America, by its counsel, Richard S. Moultrie, Jr., Acting 
United States Attorney for the Northern District of Georgia, and Kelly K. Connors 
and Nicholas L. Evert, Assistant United States Attorneys, hereby files its reply in 
support of its motions in limine [160]. 
    
1. Precluding testimony and argument regarding negligence or 
mismanagement by the PPP lender or SBA 
The government first seeks to preclude the introduction of evidence or 
argument of any claimed negligence, mismanagement, or lack of concern by the 
PPP lender or SBA, as this would be an improper attempt to shift the blame for 
Torjagbo’s fraudulent conduct to the victim(s). Torjagbo concedes, as he must, 
“that an alleged victim’s negligence is not a defense to criminal conduct.” Doc. 
[166] at 1. However, after doing so, he immediately states that he has a right to 
present a complete defense, and that the lender’s and SBA’s conduct in relation 
to the loan is relevant to the charge. Id. at 1–2. He adds that the jury should “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 [the 
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lender] and the SBA. The jury is entitled to draw their own conclusions from this 
evidence.” Id. at 2.  
While Torjagbo is certainly entitled to present a complete defense, presenting 
a complete defense does not include presenting irrelevant evidence. See Fed. R. 
Evid 402 (“Irrelevant evidence is not admissible.”).  
In United States v. Powell, 509 F. App’x 958, 960 (11th Cir. 2013) (unpublished), 
the defendant was charged as part of a mortgage fraud scheme that took place 
between 2004 and 2007 (i.e., during the buildup to the foreclosure crisis). The 
defendant had induced various lenders to fund fraudulent mortgages by 
supplying them with false loan applications. Id. The government filed a motion 
in limine seeking to bar the defendant from referring to, inter alia, “(1) the 
mortgage lenders’ negligence and/or failure to investigate further any issues 
with the mortgage applications originated by [the defendant]; [and] (2) the 
present foreclosure crisis and the role of the mortgage lenders in any ongoing 
foreclosure actions….” Id. at 961. The Eleventh Circuit affirmed the district 
court’s decision to grant the motion in limine, finding that “whether the lenders 
negligently created an environment of lax lending standards is irrelevant[, as 
c]ontributory negligence is not a defense to the crime of fraud.” Id. at 967. 
More recently, in United States v. Joseph, 108 F.4th 1273, 1277 (10th Cir. 2024), 
the defendant had submitted several false and unauthorized applications to 
federal COVID-19 relief programs on behalf of a medical practice. On appeal, the 
defendant argued that the district court had improperly denied him the 
opportunity to “emphasize on cross that [the lender] had a practice of 
inadequately vetting relief applications and, therefore, made it easier for [him] to 
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obtain funds without scienter.” Id. at 1281. The Tenth Circuit found that the 
district court had not improperly limited the defendant’s cross examination. Id. 
at 1282. It noted that the lender’s “history of imprecise application review … 
[did] not remotely relate to [the defendant’s] offenses” and that “it appear[ed] 
the desired cross-examination would [have] serve[d] only to deflect blame onto 
the lender.” Id. 
Here, as in Powell and Joseph, Torjagbo fails to explain why evidence or 
argument about the lender’s or SBA’s purported negligence would serve as 
anything more than an irrelevant and improper attempt to shift the blame for 
Torjagbo’s fraud to the victim(s). Accordingly, the motion in limine should be 
granted. 
2. Penalty evidence  
The government’s next request is that Torjagbo be prohibited from attempting 
to introduce evidence of or arguing about the potential penalties or collateral 
consequences associated with a conviction for the charged offenses. Torjagbo 
concedes that it would be improper for him to do so. Doc. [166] at 3.  
3. Character evidence 
Next, the government moves to exclude all evidence of Torjagbo’s general 
good character and evidence of specific instances of good conduct.  Torjagbo 
responds that he has not yet decided whether he will introduce any evidence of 
his other conduct, but maintains that he has the right to introduce evidence of 
“pertinent” character traits, subject to the restrictions in Fed. R. Evid. 405. Doc. 
[166] at 3–4. The government does not disagree, accordingly, there appears to be 
nothing in dispute.  
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4. Jury Nullification 
The government next moves to preclude Torjagbo from attempting to 
introduce evidence or make arguments designed to induce jury nullification. In 
connection with this, the government provided a list of examples of evidence and 
arguments that would be inappropriate: (1) Torjagbo’s financial status or to any 
financial hardship; (2) his mental health or medical conditions; (3) his familial 
obligations, such as care for an ailing parent; (4) his immigration and 
naturalization status, including his reasons for immigrating to the United States; 
(5) allegations that the statutes at issue have been unfairly or unjustly applied in 
this case; and (6) suggestions that charges were brought based on improper 
factors, such as race or ethnicity. Torjagbo specifically takes issue with two of 
these categories—his immigration status and his financial status—and argues 
that they could be relevant to the case. Doc. [166] at 5–6. Certainly, some 
evidence regarding Torjagbo’s finances will be relevant. For example, it will be 
relevant that Torjagbo spent money he received from the PPP loan on personal 
expenses, rather than to pay his purported employees. That said, evidence about 
financial hardships caused by the instant prosecution or other financial evidence 
intended merely to elicit sympathy would be improper. See Securities & Exch. 
Comm’n v. Arrowood, No. 1:12-CV-0082-RWS, 2014 WL 11517838, at *1 (N.D. Ga. 
May 15, 2014) (“to the extent [evidence] is offered merely to elicit sympathy from 
the jury, it is improper”). 
As for Torjagbo’s immigration status, the government does not dispute that 
Torjagbo is a naturalized citizen, and it does not intend to elicit testimony that 
Torjagbo was (1) ineligible to apply for a PPP loan based on his immigration 
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status or (2) not obligated to file a tax return. If he merely wishes to present 
evidence that he was not precluded from applying for a PPP loan as a United 
States citizen and that he was obliged to pay taxes, the government has no issue 
with him doing so. But Torjagbo seeks to go much further than those limited 
facts. Instead, he seeks permission to present evidence that he “legally came to 
the United States from Ghana on a student visa, and he continued to work in the 
United States after college.” Doc. [166] at 5. He claims that these facts are 
“relevant to present the jury with important context regarding the facts of the 
case and would dispel any unfair prejudice.” Id. He fails to explain, however, the 
relevance that his immigration history would have on the facts of the case or how 
they would provide additional context. The circumstances by which he 
ultimately obtained citizenship are irrelevant to the charges and designed only to 
garner sympathy based on real or perceived collateral consequences, such as 
deportation, if he is convicted. Cf. United States v. McDonald, 935 F.2d 1212, 1222 
(11th Cir. 1991) (“[t]he question of punishment should never be considered by 
the jury in any way in deciding the case”).  
5. Exclusion of undisclosed evidence  
The government next asks that the Court exclude any evidence that Torjagbo 
and/or Kremkov Industries, LLC fail to produce in discovery. Torjagbo responds 
that he “is aware of and will oblige by [his] Rule 16 obligations.” Doc. [166] at 6. 
Accordingly, there appears to be no dispute that this request should be granted.  
6. Preclusion of impeachment through investigative reports 
The government next moves to preclude Torjagbo from cross-examining or 
seeking to impeach witnesses with investigative reports that the witnesses have 
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not signed or otherwise adopted. In response, Torjagbo spends nearly five pages 
discussing the right to cross examine witnesses regarding prior inconsistent 
statements. The issue is that a third party’s characterization or interpretation of 
something that a witness has previously said is not a “statement” by the witness. 
See United States v. Saget, 991 F.2d 702, 710 (11th Cir. 1993) (“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”); United States v. Rizza, No. 2:14-CR-00002-SPC, 2014 WL 
3747624, at *2 (M.D. Fla. July 29, 2014) (“Defendants may not use the 302s to 
impeach witnesses because they are not statements of the witnesses 
themselves.”). Of course, to the extent that Torjagbo wishes to question an agent 
about his or her own report, he is welcome to do so.  
7. Addressing discovery issues outside jury’s presence 
Finally, the government requests that, to the extent any discovery-related 
issues arise at trial, those matters be addressed outside the presence of the jury. 
Torjagbo did not respond to this request, so it should be granted as unopposed.  
 
 
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CONCLUSION 
For the foregoing reasons, the government respectfully requests that the 
Court grant its motions in limine [160]. 
Respectfully submitted, 
RICHARD S. MOULTRIE, JR. 
Acting United States Attorney 
                      /s/KELLY K. CONNORS 
     Assistant United States Attorney 
  
 
     Georgia Bar No. 504787 
     
  
     Kelly.Connors@usdoj.gov 
 
 
 
 
 
 
 
   /s/NICHOLAS L. EVERT 
     Assistant United States Attorney 
Georgia Bar No. 693062 
      Nicholas.Evert@usdoj.gov 
 
600 U.S. Courthouse ▪ 75 Ted Turner Drive, SW 
Atlanta, GA 30303 ▪ 404-581-6000 
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