Motion in Limine to exclude evidence related to Count 2 by Carl Delano Torjagbo — USA v. Torjagbo (Dkt. 178, 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. 178 · 2025-04-22 · 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.
)
                                 
)    Case No. 1:22-cr-00171-MLB-RDC
)
 Superseding
CARL DELANO TORJAGBO.
)
)
____________________________
)
MOTION IN LIMINE
COMES NOW the Defendant, CARL DELANO TORJAGBO, by and
through counsel, and files this motion in limine to exclude all evidence allegedly
related or relevant to Count 2 of the superseding indictment. In support of this
motion, Mr. Torjagbo shows as follows1:
1.
Mr. Torjagbo is charged in Count 2 of the superseding indictment with
aggravated identity theft, specifically, the following:
Count 2
(Aggravated Identity Theft)
14. The facts alleged in paragraphs 2 through 12 are
realleged and incorporated here.
     1As directed by the Court, (Doc. 176), the parties met and conferred on April 8, 2025. This
specific motion was not addressed for it had not yet been conceived. 
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15. On or about February 16, 2021, in the Northern
District of Georgia and elsewhere, the Defendant, Carl
Delano Torjagbo, a/k/ a Karl Lucius Delano, aided and
abetted by others unknown to the Grand Jury,
knowingly possessed and used, without lawful authority,
a means of identification of another person, that person
being M.S., during and in relation to the bank fraud
scheme charged in Count 1 of this Superseding
Indictment.
All in violation of Title 18, United States Code, Section
1028A(a)(l) and Section 2.
(Doc. 110).
2.
At this time, Mr. Torjagbo does not allege Count 2 fails to adequately
charge the offense of aggravated identity theft. However, the evidence at trial and
applicable Supreme Court precedent will not allow Count 2 to survive Mr.
Torjagbo’s future Rule 29 motion to dismiss. Put bluntly, Count 2 will not make it
to the jury, thus evidence to support the count, including the testimony of “M.S.”
should be excluded from Mr. Torjagbo’s trial when the evidence will show, as a
matter of law, the identity of “M.S.” was not used “during and in relation to” the
bank fraud scheme charged in Count 1.
3. 
In Dubin v. United States, the Supreme Court held,
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A defendant “uses” another person’s means of identification “in
relation to” a predicate offense when this use is at the crux of what
makes the conduct criminal. To be clear, being at the crux of the
criminality requires more than a causal relationship, such as
“‘facilitation’” of the offense or being a but-for cause of its “success.”
Post, at ___, ___-___, 216 L. Ed. 2d, at 157, 158-160 (Gorsuch, J.,
concurring in judgment). Instead, with fraud or deceit crimes like the 
[*132]  one in this case, the means of identification specifically must
be used in a manner that is fraudulent or deceptive. Such fraud or
deceit going to identity can often be succinctly summarized as going
to “who” is involved.
Here, petitioner’s use of the patient’s  [***156]  name was not at the
crux of what  [**1574]  made the underlying overbilling fraudulent.
The crux of the healthcare fraud was a misrepresentation about the
qualifications of petitioner’s employee. The patient’s name was an
ancillary feature of the billing method employed.
Dubin v. United States, 599 U.S. 110, 131-132, 143 S. Ct. 1557, 1573-1574
(2023). (Copy of opinion attached hereto as “Exhibit 1.”)
Dubin was a Medicare fraud case where the defendant over-billed Medicare
for services provided to a patient. The Government also charged Dubin with
aggravated identity theft because he used the patient's identification to submit the
inflated bill. “The Supreme Court clarified the scope of the statute, explaining ‘[a]
defendant 'uses' another person's means of identification 'in relation to' a predicate
offense when this use is at the crux of what makes the conduct criminal.’ Dubin,
599 U.S. at 131. In other words, just because the defendant used a patient's
name in submitting an inflated bill did not mean that he committed identity
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theft under the statute.” Dixon v. United States, 2024 U.S. Dist. LEXIS 222621,
*9, 2024 WL 5075637 (December 9, 2024)(ND Ga)(emphasis added). 
Mr. Torjagbo’s case is similar to Dubin. He did not take out a loan in the
name of “M.S.” Use of the name “M.S.” was not at the crux of the PPP fraud. Only
the name “M.S.” was submitted as one of 493 employees. No other identifiers of
“M.S.” were used or submitted. The PPP loan application was not submitted in the
name of “M.S.” “M.S.” did not lose any money because of the PPP loan. “M.S.”
was not a victim of identity theft, and surely not a victim of aggravated identity
theft. The use of the name “M.S.” was ancillary and collateral. The insignificance
of the alleged name-use is born out by the fact, (as the government often notes),
that many of the 493 employee names submitted with the PPP loan application
appear to belong to fictional characters such as “John Snow” and “Oliver Twist.”
The crux of the charged PPP loan fraud is the allegation that Mr. Torjagbo
allegedly did not have a company with 493 employees who needed their payroll
checks protected / paid during the COVID pandemic. The specific names of those
employees were ancillary. 
Under Federal Rules of Evidence 401 and 403, the evidence related to
Count 2, including the testimony of “M.S.,” should be excluded as it will not be
relevant, and its introduction is unduly prejudicial when compared to any
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probative value it might have.
WHEREBY, CARL DELANO TORJAGBO requests that his motion in
limine be granted and the Court direct the Government to exclude all evidence
allegedly related or relevant to Count 2 of the superseding indictment, including
the testimony of “M.S.” 
Dated:  This 22nd day of April, 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
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CERTIFICATE OF SERVICE
This is to certify that I have this day electronically filed the Motion in
Limine 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, and
                              Mr. Nick Evert 
     Assistant United States Attorneys
     600 U.S. Courthouse
     75 Ted Turner Drive, S. W.
     Atlanta, Georgia  30303
DATED:  This 22nd day of April, 2025.
 s/ L. Burton Finlayson 
L. BURTON FINLAYSON
ATTORNEY FOR CARL DELANO TORJAGBO   
State Bar Number: 261460   
  
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