Court filing
Post-Hearing Brief as to Carl Delano Torjagbo filed by Carl Delano Torjagbo re 61 MOTION… — USA v. Torjagbo (Dkt. 177)
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2025-03-19 |
U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 177 · 2025-03-19 · Docket on CourtListener
Summary
A post-hearing brief filed March 19, 2025 by defendant Carl Delano Torjagbo in United States v. Torjagbo, Case No. 1:22-cr-00171-MLB-RDC, in the U.S. District Court for the Northern District of Georgia, docketed as Document 177. It opposes the government's motion for interlocutory sale of three properties (Doc. 61), following an evidentiary hearing on December 9, 2024. The brief argues the government did not meet its burden under Supplemental Rule G(7), that carrying costs are offset by rising property values, and that nexus to the alleged conduct was not shown before any conviction. It urges the Court to follow USA v. Benbow and argues that USA v. Furando, USA v. Smith and USA v. Gianelli are distinguishable. Defense counsel L. Burton Finlayson signs the brief, which ends with a certificate of service.
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Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA
)
)
v.
) Case No. 1:22-cr-00171-MLB-RDC
)
CARL DELANO TORJAGBO.
)
____________________________
)
POST-HEARING BRIEF IN OPPOSITION TO GOVERNMENT’S
MOTION FOR INTERLOCUTORY SALE OF REAL PROPERTY
COMES NOW Defendant Carl Delano Torjagbo, through undersigned
counsel, and submits this post-hearing brief in opposition to the government’s
motion for interlocutory sale of property. (Doc. 61). The government has moved
for interlocutory sale of three properties owned by Mr. Torjagbo: a residence at
5114 Greythorne Lane, Marietta, GA, and land parcels at 101 Holt Drive,
Ackworth, GA, and Tract 4 Fiber Drive, Cartersville, GA. (Doc. 61). The Court
conducted an evidentiary hearing on December 9, 2024. (Doc. 167, hearing
transcript, hereinafter “T”). The government failed to meet its burden1 to establish
the properties are sufficiently at risk of deterioration, decay, taxes, encumbrance or
other factors listed in Supplemental Rule G(7). This Court should deny the
1The default rule is the "burden of proof [is] . . . on the moving party." See USA v.
Approximately 81,454 Cans of Baby Formula, 560 F.3d 638, 641 (7th Cir. 2009). USA v. Hall,
877 F.3d 676, 685 (6th Cir. 2017).
Case 1:22-cr-00171-MLB-RDC Document 177 Filed 03/19/25 Page 1 of 6
government’s unusual request for interlocutory sale prior to any finding of Mr.
Torjagbo’s guilt, considering the high market value of the properties and the
comparatively minor expenses of preserving them.
There is insufficient evidence Torjagbo’s properties are losing net value as
opposed to gaining. While back-taxes admittedly are accruing, (T-pp.60-65), and
landscaping costs, legal expenses and HOA dues are being incurred by an East
Cobb homeowners’ association, (T-pp.26-27), it is reasonable to conclude
increases in property values in the 2024-2025 real estate market2 offset these
expenses. Furthermore, the government failed to present evidence of the current
values of the properties or establish the values have declined to dangerous levels,
or even below what Torjagbo paid. In its motion, the government alleges the
properties have a total fair market value over $1.5 million. (Doc.61-4). At the
evidentiary hearing, counsel for Torjagbo proffered that the Greythorne Lane
property is now worth approximately $2 million3. (T-p.71). All taxes and HOA
expenses can be covered with the equity increase / profit from Greythorne Lane.
Interlocutory sales are permitted when "the expense of keeping the property is
2Real estate prices in Marietta, GA, are increasing and projected to increase for 2024-2025.
Marietta remains a sellers market. See https://www.noradarealestate.com/blog/
marietta-ga-housing-market-trends/ (Accessed 3/18/2025).
3This was consistent with testimony that the neighborhood home in the HOA ranged from
$1.5 to $2.8 million. (T-43).
2
Case 1:22-cr-00171-MLB-RDC Document 177 Filed 03/19/25 Page 2 of 6
excessive or is disproportionate to its fair market value." Fed. R. Civ. P. Supp.
G(7)(b)(1)(B). USA v. Youssef, 734 F. Supp. 3d 638, 641, 2024 U.S. Dist. LEXIS
89643, *5 (E.D. MI. 2024). Here, expenses are not excessive or disproportionate
to the fair market value, and the government has not proved otherwise.
The government also failed to prove sufficient nexus between the properties
and the alleged criminal conduct. Torjagbo has not been convicted of any crime.
He maintains and retains his presumption of innocence. The government must
show a nexus between directly forfeitable property and the offense. USA v. Smith,
2010 WL 4962917, at *3 (E.D. Ky. Dec. 1, 2010). While FBI Agent Caruana
provided generalized conclusions that the properties were purchased with fraud
proceeds, (T-pp.60,62,64), this was unspecific and insufficient proof of nexus.
Additionally, Torjagbo asks the Court to be persuaded by a district court’s ruling
USA v. Benbow, 2006 WL 2850100, at *3 (M.D. Fla. Oct. 3, 2006) and deny the
interlocutory sale as it amounts to a “pre-conviction forfeiture.” Id. In Benbow,
District Judge Kovachevich vacated an interlocutory sale in a criminal forfeiture
case and rejected the wholesale import of civil forfeiture procedure. The court
reasoned the statute governing criminal forfeiture required a conviction as a
prerequisite to forfeiture, held that an interlocutory sale of real estate was, for all
intents and purposes, a forfeiture and vacated its order because the defendant had
3
Case 1:22-cr-00171-MLB-RDC Document 177 Filed 03/19/25 Page 3 of 6
not yet been convicted. For similar reasons, this Court should reject the
government’s attempt to turn Torjagbo’s criminal forfeiture case into a civil one.
A man’s home is his castle. The government should not be allowed to sell
Torjagbo’s property in this unusual manner at this unusual time.
The government acknowledges the dearth of applicable case law. (Doc. 171-
3, gov. post-hearing brief). The cases cited by the government are factually and
procedurally distinguishable from Torjagbo’s and do not support an interlocutory
sale here. In USA v. Furando, 40 F.4th 567, 581 (7th Cir. 2022)4, the forfeiture
order was filed after a defendant’s guilty plea, not before. Furando involved a
third-party claim against the property. Here, no third-party claim has been filed.
USA v. Smith, No. 3:08-CR-31, 2010 WL 4962917, at *2 (E.D. Ky. Dec. 1, 2010)5,
involved a government’s motion to amend a preliminary order of forfeiture and
sell property after a jury trial, while the case was on appeal. Here, Torjagbo has
not been convicted. In Smith, the mortgage was not being paid; the property was
subject to foreclosure. Here, there is no mortgage or foreclosure risk. In USA v.
Gianelli, 594 F. Supp. 2d 148, 150 (D. Mass. 2009)6, the mortgage was in default,
4 Cited by government at Doc.171-p.3.
5Cited by government at Doc.171-p.3.
6Cited at Doc.171-p.3.
4
Case 1:22-cr-00171-MLB-RDC Document 177 Filed 03/19/25 Page 4 of 6
and no payments were being made, despite an order to do so. The government
established the home had lost over half its value. Here, there is no mortgage, and
Torjagbo’s home value has not decreased in a similar way, if at all. USA v. Lot 41,
Berryhill Farm Ests., 128 F.3d 1386, 1390 (10th Cir. 1997)7, involved a civil
forfeiture complaint and summary judgement under Title 21 USC §881(a)(6), after
the owner had been convicted in a criminal jury trial.
Last, the risk of squatters has been mitigated and resolved by Torjagbo’s
involvement of the Cobb County police. (T-46,55-56). Adverse possession in
Georgia requires 20 years absent color of title, 7 years with color of title, and was
never a realistic concern or risk to the properties. See OCGA § 44-5-161, et. seq.
WHEREBY, Carl Delano Torjagbo requests the government’s motion be
denied.
Dated: This 19th day of March, 2025.
Respectfully submitted,
s/ L. Burton Finlayson
L. BURTON FINLAYSON
Attorney for CARL DELANO TORJAGBO
Georgia Bar Number: 261460
LAW OFFICE OF
L. BURTON FINLAYSON, LLC
685 Linwood Avenue, NE, Suite 200A
Atlanta, Georgia 30306
(404) 872-0560
lbfcourts@aol.com
7Cited at Doc.171-p.3.
5
Case 1:22-cr-00171-MLB-RDC Document 177 Filed 03/19/25 Page 5 of 6
CERTIFICATE OF SERVICE
This is to certify that I have this day electronically filed the foregoing post-
hearing brief with the Clerk of Court using the CM/ECF system which will
automatically send email notifications of such filing upon all counsel of record
including the following:
Ms. Kelly Connors
Assistant United States Attorney
600 U.S. Courthouse
75 Ted Turner Drive, S. W.
Atlanta, Georgia 30303
DATED: This 19th day of March, 2025.
s/ L. Burton Finlayson
L. BURTON FINLAYSON
ATTORNEY FOR CARL DELANO TORJAGBO
State Bar Number: 261460
6
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