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REPLY TO RESPONSE to Motion as to Carl Delano Torjagbo filed by Carl Delano Torjagbo re:… — USA v. Torjagbo (Dkt. 184)
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2025-05-20 |
U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 184 · 2025-05-20 · Docket on CourtListener
Summary
A defense reply to the government's response (Doc. 179) to a motion in limine (Doc. 178), filed May 20, 2025 as Doc. 184 by Carl Delano Torjagbo in United States v. Torjagbo, No. 1:22-cr-00171-MLB-RDC, in the U.S. District Court for the Northern District of Georgia, through counsel L. Burton Finlayson. The reply notes a second superseding indictment obtained May 13, 2025 (Doc. 180) that charges aggravated identity theft in Count 2 in connection with the bank fraud scheme charged in Count 1. Citing Dubin v. United States, 599 U.S. 110, it argues that use of one person's name among 493 employee names on a PPP loan application was not at the crux of the alleged falsehoods, which it describes as the claimed employee count and average monthly payroll of $3,821,770. It asks the court to exclude all evidence related to Count 2 under Federal Rules of Evidence 401 and 403.
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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
)
Second Superseding
CARL DELANO TORJAGBO,
)
a/k/a Karl Lucius Delano.
)
____________________________
)
REPLY TO GOVERNMENT’S RESPONSE
TO DEFENDANT’S MOTION IN LIMINE
COMES NOW the Defendant, CARL DELANO TORJAGBO, a/k/a Karl
Lucius Delano, by and through counsel, and files this reply to the government’s
response (Doc. 179) to his motion in limine to exclude evidence allegedly related
or relevant to Count 2 of the superseding indictment. (Doc. 178). In reply and in
further support of his motion, Mr. Delano Torjagbo shows as follows:
1.
On May 13, 2025, the government obtained a second superseding
Indictment in this case. (Doc. 180). Mr. Delano Torjagbo remains charged in
Count 2 of the second superseding indictment with aggravated identity theft,
specifically, the following:
Count 2
(Aggravated Identity Theft)
Case 1:22-cr-00171-MLB-RDC Document 184 Filed 05/20/25 Page 1 of 7
14. The facts alleged in paragraphs 2 through 12 are
realleged and incorporated here.
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. 180).
2.
In his motion in limine, Mr. Delano Torjagbo submits 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 his 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. (Doc. 178-p.2).
3.
Mr. Torjagbo notes that in Dubin v. United States, the Supreme Court held,
A defendant “uses” another person’s means of identification “in
relation to” a predicate offense when this use is at the crux of what
2
Case 1:22-cr-00171-MLB-RDC Document 184 Filed 05/20/25 Page 2 of 7
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). (Doc. 178-pp. 2-3, and see Doc. 178-Exhibit 1.) In Dubin, “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 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).
ARGUMENT
In response, the government correctly notes “there is no avenue for
3
Case 1:22-cr-00171-MLB-RDC Document 184 Filed 05/20/25 Page 3 of 7
summary judgement in a criminal case.” (Doc 179-p.3). While this is generally
true, in its response the government makes no argument or cites any allegation or
authority to avoid the Dubin issue and allow Count 2 to get to the jury. In fact, the
government does not substantively address Dubin at all. (Doc. 179). Mr. Delano
Torjagbo recognizes the perceived quandary his motion might place the
government in - “he seeks to exclude testimony . . . it would [then] be impossible
for the government to prove the charge.” (Doc. 179-p.2). However, the
government’s response and proposed remedy, absent any consideration or rebuttal
of the Dubin issue, creates a worse quandary for the Defendant and is less
reasonable or fair. Under the government’s approach, it will be allowed to present
all evidence related to Count 2, including testimony of “M.S.” Count 2 will be
dismissed mid-trial, however “the bell will have been rung,” as they say. Perhaps
the jury can be instructed to disregard the irrelevant testimony and the dismissed
charges, but here, when it is apparent from the face of the indictment and the face
of the PPP loan application at issue, that use of “M.S.’s” name, among 493 names,
was not “at the crux of what made the underlying [loan application] fraudulent,”
Dubin, 599 U.S. at 131-132, why allow such prejudice and risk of prejudice to be
created ?
As the government alleges on the face of the second superseding
4
Case 1:22-cr-00171-MLB-RDC Document 184 Filed 05/20/25 Page 4 of 7
indictment1 in Count 1, the crux of what allegedly made the PPP loan application
fraudulent was the following:
9. Contrary to his false certification, the PPP loan application that Defendant
Torjagbo submitted was filled with materially false and fraudulent
representations. For example:
• Defendant Torjagbo certified that Kremkov Industries was "in
operation on February 15, 2020." That was not true.
• Defendant Torjagbo certified that a PPP loan was "necessary to support
t
the ongoing operations" of Kremkov Industries. That was not true.
• Defendant Torjagbo stated that Kremkov Industries had 493 employees.
That was not true.
• Defendant Torjagbo stated that Kremkov Industries had an average
monthly payroll of $3,821,770. That was not true either.
. . . .
11. To support the fraudulent application, Defendant Torjagbo provided
Chase Bank with copies of false tax returns, as well as copies of phony
payroll reports purporting to show that Kremkov Industries had paid
wages to 493 employees.
(See second superceding indictment. Doc. 180, paragraphs 9 & 11).
The crux of the alleged material falsehoods is that Kremkov Industries had
493 employees, with average monthly wages of $3,821,770. Who those employees
were (or were not) is a collateral matter. As the government repeatedly points out,
the list of 493 employees also included names such as Oliver Twist, John Snow
1Filed May 13, 2025.
5
Case 1:22-cr-00171-MLB-RDC Document 184 Filed 05/20/25 Page 5 of 7
and Gene Hackman.
If the government had put forth any argument to rebut the Dubin issue and
allow Count 2 to survive a Rule 29 motion, Mr. Delano Torjagbo’s motion in
limine might be moot. It has not, and Mr. Delano Torjagbo’s motion should be
granted under Federal Rules of Evidence 401 and 403.
WHEREBY, Mr. 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 20th day of May, 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
6
Case 1:22-cr-00171-MLB-RDC Document 184 Filed 05/20/25 Page 6 of 7
CERTIFICATE OF SERVICE
This is to certify that I have this day electronically filed the Reply 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 20th day of May, 2025.
s/ L. Burton Finlayson
L. BURTON FINLAYSON
ATTORNEY FOR CARL DELANO TORJAGBO
State Bar Number: 261460
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