Motion to Dismiss Counts Carl Delano Torjagbo (1) Count 2s,2ss with Brief — USA v. Torjagbo (Dkt. 188, 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. 188 · 2025-06-05 · Docket on CourtListener

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.
)
)
____________________________
)
MOTION TO DISMISS COUNT 2
COMES NOW the Defendant, KARL LUCIUS DELANO, a/k/a CARL
DELANO TORJAGBO, by and through counsel, and moves to dismiss Count 2 of
the Second Superseding Indictment. In support of this motion, Mr. Delano shows
as follows:
1.
The government obtained the Second Superseding Indictment in this case
on May 13, 2025. (Doc. 180). Mr. Delano entered pleas of “not guilty” to all
counts on May 22, 2025. (Doc. 186). Count 1 of the Second Superseding
Indictment charges bank fraud in violation of 18 U.S.C. §§ 1344 and 2. Count 2
charges aggravated identity theft in violation of 18 U.S.C. §§ 1028A and 2. Counts
3 and 4 charge wire fraud in violation of 18 U.S.C. §§ 1343 and 2. Counts 5
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through 7 charge concealment money laundering in violation of 18 U.S.C. §§
1956(a)(1)(B)(I) and 2. Counts 8 through 11 charge three counts of transactional
money laundering in violation of 18 U.S.C. §§ 1957 and 2. (Doc. 180). 
2.
Count 2 of the Second Superseding Indictment alleges aggravated identity
theft, specifically, as follows:
Count 2
(Aggravated Identity Theft)
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 Second Superseding
Indictment.
All in violation of Title 18, United States Code, Section
1028A(a)(l) and Section 2.
(Doc. 180).
3.
Count 2 alleges the identity of M.S. was used during and in relation to the
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bank fraud scheme charged in Count 1 of this Second Superseding Indictment.
(Doc. 180-p. 5). A closer review of Count 1, and paragraphs 2 through 12 thereof,
reveals the government’s aggravated identity theft charge in Count 2 is premised
upon the alleged use of “M.S.’s” identity (name) as being included among the 493
employee names submitted with the PPP loan application at issue, to wit: 
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 stated that Kremkov Industries had 493     
employees. That was not true.
(Doc. 180, p. 3, Count 1, paragraph 9). 
4.
Given the government’s incorporated language from Count 1 and the
allegation in Count 2, as a matter of law, the identity of “M.S.” was not used or
possessed “during and in relation to” the bank fraud scheme charged in Count 1.
Thus, Count 2 must be dismissed. See Dubin v. United States, 599 U.S. 110, 143
S. Ct. 1557 (2023). (Copy attached hereto as “Exhibit A.”) 
ARGUMENT AND AUTHORITY
In Dubin v. United States, the Supreme Court held,
A defendant “uses” another person’s means of identification “in
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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). 
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 premised on the theory that 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
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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). 
Mr. Delano’s case is similar to Dubin. There is no allegation he obtained a
loan in the name of “M.S.” Use and possession of the identity of  “M.S.” was not
at the crux of the PPP fraud charged on Count 1. According to the face of the
indictment, the identity of “M.S.” was submitted as one of the 493 (allegedly non-
existent) employees. According to the face of the indictment, the PPP loan
application was submitted for and by Kremkov Industries and Mr. Delano. 
The loan application is not alleged to have been submitted in the name of
“M.S.” “M.S.” did not lose 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 identity of “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. Delano 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
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ancillary to the fraud. 
   
WHEREBY, Mr. Delano asks that Count 2 be dismissed as it fails to
adequately state a crime. 
Dated:  This 5th day of June, 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 to
Dismiss Count Two 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. Nicholas Evert 
     Assistant United States Attorneys
     600 U.S. Courthouse
     75 Ted Turner Drive, S. W.
     Atlanta, Georgia  30303
DATED:  This 5th day of June, 2025.
 s/ L. Burton Finlayson 
L. BURTON FINLAYSON
ATTORNEY FOR CARL DELANO TORJAGBO   
State Bar Number: 261460   
  
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