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REPLY TO RESPONSE to Motion as to Carl Delano Torjagbo filed by Carl Delano Torjagbo re:… — USA v. Torjagbo (Dkt. 194)
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2025-06-17 |
U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 194 · 2025-06-17 · Docket on CourtListener
Summary
The defendant's reply to the government's response to his motion to dismiss Count 2 of the Second Superseding Indictment in United States v. Carl Delano Torjagbo, a/k/a Karl Lucius Delano, No. 1:22-cr-00171-MLB-RDC, in the U.S. District Court for the Northern District of Georgia, filed June 17, 2025 as Document 194 by defense counsel L. Burton Finlayson. Relying on Dubin v. United States, the reply argues that the indictment's alleged use of one listed employee's identity among 493 names on a PPP loan application was ancillary rather than at the crux of the charged bank fraud. It argues that United States v. Fullerton, cited in the government's response (Doc. 191), is not persuasive, and points to United States v. Sheppard and United States v. Noble. It asks that Count 2 be dismissed and, in a footnote, that the motion in limine (Doc. 178) be granted.
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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
)
Second Superseding
CARL DELANO TORJAGBO,
)
a/k/a
)
KARL LUCIUS DELANO.
)
)
____________________________
)
REPLY TO GOVERNMENT’S RESPONSE TO
DEFENDANT’S MOTION TO DISMISS COUNT 2
COMES NOW the Defendant, KARL LUCIUS DELANO, a/k/a CARL
DELANO TORJAGBO, by and through counsel, and files this reply to the
government’s response (Doc. 191) to his motion to dismiss Count 2 of the Second
Superseding Indictment (Doc. 188). In reply and in further support of his motion
to dismiss, Mr. Delano shows as follows:
Mr. Delano has moved to dismiss Count 2 based upon Dubin v. United
States, 599 U.S. 110, 131-132, 143 S. Ct. 1557, 1573-1574 (2023). He submits the
face of the indictment fails to adequately state a crime. The indictment alleges 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
Case 1:22-cr-00171-MLB-RDC Document 194 Filed 06/17/25 Page 1 of 7
submitted for and by Kremkov Industries and Mr. Delano. Based upon the face of
the indictment, the use of the identity of “M.S.” was ancillary and collateral, and
not “at the crux” of the bank-fraud. 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 ancillary to the fraud. (Doc. 188).
In response, the government asserts the Defendant’s request is premature,
(Doc. 191-p.6), and normally this might be correct. However, here it is abundantly
clear in advance of trial, Count 2 must be dismissed. The government relies upon a
district court case from the Western District of Texas, United States v. Fullerton,
2023 U.S. Dist. LEXIS 167119, 2023 WL 6150782 (W.D. Tex. Sept. 20, 2023), to
argue “even if the Court were to entertain Defendant’s premature motion, it should
be denied.” (Doc. 191-p. 6). Mr. Delano respectfully replies - Fullerton is not
persuasive or correct.
The government writes the following:
In United States v. Fullerton, the indictment contained an aggravated
identity theft count premised on the defendant having falsely claimed
that six individuals were employees of his business, and submitting
their names, Social Security numbers, and fake W-2s in connection
with his PPP loan application. United States v. Fullerton, No. 1:21-
2
Case 1:22-cr-00171-MLB-RDC Document 194 Filed 06/17/25 Page 2 of 7
CR-216-RP, 2023 WL 6150782, at *4 (W.D. Tex. Sept. 20, 2023).
Defendant argued that the count must fail “because the only purpose
of this information was to complete fully the PPP applications and
maximize the amount loaned, which was not the crux of the alleged
scheme.” Id. (internal quotation marks omitted). The court rejected
this argument, reasoning:
[The defendant’s] alleged use of the six employees’
information was “used in a manner that is fraudulent or
deceptive,” Dubin, 143 S. Ct. at 1573, because the
employees did not work at his business nor did their
information actually appear on W-2 forms in connection
to his business. Instead, the use of the information was
crucial to being able to fill out the fraudulent loan
applications because the amount of the PPP loans so
heavily depended on the number of employees that a
business had. If Defendant did not include the
employees’ information, he would have been unable to
secure the loans. Further, this use of their information
falls under Dubin because PPP loans were, among other
things, supposed to be used to pay the salaries of an
applicant business’s employees. By allegedly asserting
that EMPLOYEES 1–6 worked at his business,
Defendant[] misrepresented who was to be receiving the
PPP funds.
Id.
First, in Fullerton, the defendant submitted six names, along with false W-
2's and Social Security numbers. Here, there is no allegation that Mr. Delano
submitted false W-2's or Social Security numbers, but 493 names (with no other
identifiers). Second, the district court in Fullerton incorrectly applied the exact
3
Case 1:22-cr-00171-MLB-RDC Document 194 Filed 06/17/25 Page 3 of 7
type of “but-for” analysis that Dubin prohibits: “If Defendant did not include the
employees’ information, he would have been unable to secure the loans.”
Fullerton, No. 1:21-CR-216-RP, 2023 WL 6150782, at *4 ).
Closer to home, Judge Bloom in the Southern District of Florida
refused to be persuaded by Fullerton in a PPP fraud / aggravated identity theft
prosecution:
The Government relies on an out-of-circuit district court
decision for its position that Defendant's use of
Cupersmith's means of identification is at the crux of
both counts of wire fraud. United States v. Fullerton,
2023 U.S. Dist. LEXIS 167119, 2023 WL 6150782
(W.D. Tx. Sept. 20, 2023). The defendant was charged
with aggravated identity theft after "Defendant allegedly
used the name and forged signature of a certified public
accountant, S.S., to indicate that the form had been
completed by a tax preparer, when in fact, S.S. did not
prepare any of the forms for the PPP application" when
submitting fraudulent form 940 and 941s in support of a
PPP application. 2023 U.S. Dist. LEXIS 167119, [WL]
at *1. There, "Defendant stole an accountant's identity
and forged his signature for the purpose of signifying
that the tax records were properly prepared." 2023 U.S.
Dist. LEXIS 167119, [WL] at *4.
After the defendant moved to dismiss this count of the
indictment, the court held "[t]his action directly
legitimized the loan applications and increased the
likelihood that they would be approved by the
appropriate financial institutions." Id. This was enough
for the court to uphold the defendant's charge of
aggravated identity theft under Dubin. Like the
4
Case 1:22-cr-00171-MLB-RDC Document 194 Filed 06/17/25 Page 4 of 7
Government in its response brief, the court in this case
stopped at the "identity theft" requirement - tied to the
statutory term "uses" - of Dubin and discussed it as being
identical to the "at the crux" requirement: the court held
that "[h]is fraud thus centered on 'who' was involved in
the fraudulent action. Because his use of S.S.'s identity
was 'used in a manner that is fraudulent or deceptive,'
Dubin, 143 S. Ct. at 1573, Count 10 properly states
facts that would constitute a charge of aggravated
identity theft under § 1028A." 2023 U.S. Dist. LEXIS
167119, [WL] at *4.
Dubin requires more than the occurrence of identity
theft during a predicate offense: the identity theft
must be "at the crux" of the predicate offense.
Accordingly, the Court declines to follow the
reasoning of Fullerton.
United States v. Sheppard, 2024 U.S. Dist. LEXIS 97931 at
*38, Note 5; 2024 WL 2815278 (S.D. Fl. June 3, 2024)(emphasis
added).
Even closer to home, Judge Grimberg in this district, applied
Dubin to allow a COVID-19 loan fraud defendant to withdraw his
aggravated identity theft guilty plea in United States v. Noble, 713 F.
Supp. 3d 1366 (N.D. Ga. January 23, 2024), citing United States v.
Sheppard, supra., and United States v. Gladden, 78 F.4th 1232 (11th
Cir. 2023). (Dubin made clear that "being at the crux of the
criminality requires more than . . . facilitation of the offense[.]")
5
Case 1:22-cr-00171-MLB-RDC Document 194 Filed 06/17/25 Page 5 of 7
Gladden, 78 F.4th at 1248.
WHEREBY, Mr. Delano asks that Count 2 be dismissed1.
Dated: This 17th day of June, 2025.
Respectfully submitted,
s/ L. Burton Finlayson
L. BURTON FINLAYSON
Attorney for Defendant
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
1For similar reasons he asks that his motion in limine to exclude evidence related to Count 2,
(Doc. 178), be granted.
6
Case 1:22-cr-00171-MLB-RDC Document 194 Filed 06/17/25 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. Nicholas Evert
Assistant United States Attorneys
600 U.S. Courthouse
75 Ted Turner Drive, S. W.
Atlanta, Georgia 30303
DATED: This 17th day of June, 2025.
s/ L. Burton Finlayson
L. BURTON FINLAYSON
ATTORNEY FOR DEFENDANT
State Bar Number: 261460
7
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