Court filing
RESPONSE as to Carl Delano Torjagbo filed by Carl Delano Torjagbo re: 196 Notice of… — USA v. Torjagbo (Dkt. 204)
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2025-07-08 |
U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 204 · 2025-07-08 · Docket on CourtListener
Summary
A reply by defendant Karl Lucius Delano, a/k/a Carl Delano Torjagbo, to the government's notice of intent to use Fed. R. Evid. 404(b) evidence (Doc. 196), filed July 8, 2025 as Document 204 in Case No. 1:22-cr-00171-MLB-RDC in the U.S. District Court for the Northern District of Georgia. The government's notice concerns two Social Security numbers associated with different dates of birth, which the reply attributes to a typographical error. The reply argues that this evidence is not part of the wire fraud charged in Counts 2 and 3 of the Third Superseding Indictment, does not show identity or intent under Rule 404(b), and is more unfairly prejudicial than probative under Rule 403. It requests exclusion of the evidence and a hearing on the notice. The filing is 11 pages 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
)
Second Superseding
CARL DELANO TORJAGBO,
)
a/k/a
)
KARL LUCIUS DELANO.
)
)
____________________________
)
REPLY TO GOVERNMENT’S NOTICE OF INTENT TO USE
FED. R. EVID. 404(b) EVIDENCE
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 notice of intent to introduce evidence under Federal Rule of
Evidence 404(b). (Doc. 196). In reply and in opposition to the government’s
motion to introduce extrinsic evidence, or alleged inextricably intertwined
evidence of other crimes or wrongs, Mr. Delano shows as follows:
The government has filed notice suggesting it just learned the Defendant has
two different social security numbers, associated with two different dates of birth.
(Doc. 196-2). In the previous indictments, the government alleged the Defendant
filed two fraudulent U.S. individual income tax returns (Forms 1040) on February
Case 1:22-cr-00171-MLB-RDC Document 204 Filed 07/08/25 Page 1 of 11
13, 2021, one under a social security number (SSN), and the other under an
individual taxpayer identification number (ITIN)1. None of the prior indictments,
nor the 2020 tax returns at issue, contain or refer to Defendant’s date of birth. In
its 404(b) Notice, the government indicated it would supersede the indictment to
remove the term “ITIN” and replace it with “an additional SSN,” and has now
done so. (Doc. 196, p.2, note 1; Third Superseding Indictment, Doc. 198, p.6).
The government submits this new revelation, two different SSNs associated
with two different birth dates, demonstrates the Defendant must have obtained one
of his SSNs with false or fraudulent information. (Doc. 196-3). The government
ignores an innocent explanation: the original SSN, issued in 1997, reflected a
typographical error, a 1975 date of birth. When a replacement SSN was issued in
2005, the error was corrected to reflect the true date of birth in 1979. It should be
noted - the month and day of birth are the same for both SSN accounts. The name
is the same. Only the years are different.
Most of the “new discovery” is not inextricably intertwined with
admissible evidence in this case.
Assuming proper foundations, in an attempt to prove what was charged as
1 (Docs. 1, 110,180.)
2
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Count 3 in the second superseding indictment, (Doc. 180-p.7)2, the government
would have admitted the two tax returns filed in 2021 in Carl Torjagbo’s name.
The two returns contain different numbers, one ending in 6010, the other ending in
0540. If the returns are admitted, the different SSNs likely will be admitted3.
However, the tax returns do not contain dates of birth for Mr. Delano
(formerly Mr. Torjagbo). There is no need for the government to go into the matter
of different birth dates to prove the wire fraud allegations in Counts 2 and 3 of the
Third Superseding indictment. There is no need for the government to allege,
imply or attempt to prove the two different SSNs were fraudulently obtained.
There is no purpose for the government to go into the birth dates, or the implied
Social Security fraud, other than to create undue and unfair prejudice based solely
upon supposition and insinuation4. The government presumes some type of Social
Security Number fraud, apparently without evidence.
Furthermore, from the government’s notice, it appears the SSNs were issued
in 1997 and 2005. It defies reason, and the evidence, to suggest the Defendant
2And is now charged in Counts 2 and 3 of the Third Superseding Indictment.
3Although, the better and safer practice would be to redact the SSNs.
4Mr. Delano will move to strike the dates of birth and Social Security fraud implication from
the Third Superseding Indictment within the allotted time-period from his July 11, 2025,
arraignment. (Doc. 201).
3
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began orchestrating his 2021 wire fraud schemes, twenty years ago. Matters
relating to the obtaining of a Social Security numbers in 1997 and 2005 are not
part of, intrinsic to, or inextricably intertwined with the government’s proof of a
2021 wire fraud.
The different dates of birth and the alleged Social Security fraud are not
inextricably intertwined with the evidence regarding the current charged wire
fraud offenses. United States v. Ramsdale, 61 F.3d 825, 829 (11th Cir. 1995). The
different dates of birth are not part of the crimes or the tax returns at issue. They
are not necessary to explain the chain of events or context. They do not explain or
prove motive or set-up of the crime. This evidence should not be admitted as it is
not “linked in time and circumstances with the charged crime[s], [and does not
form] an integral and natural part of an account of the crime, or is necessary to
complete the story of the crime for the jury.” United States v. Williford, 764 F.2d
1493, 1499 (11th Cir. 1985).
The Different Dates of Birth Associated with the Different SSNs
Do Not Meet the Requirements of Rule 404(b) or Rule 403.
“Evidence of any other crime, wrong, or act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted
in accordance with the character.” Fed. R. Evid. 404(b)(1). However, “[t]his
4
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evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Fed. R. Evid. 404(b)(2).
The Court should apply a three-part test to determine admissibility under
this rule. First, the evidence must be relevant to an issue other than the defendant’s
character. Second, there must be sufficient proof that the defendant committed the
extrinsic act. Third, the evidence must survive the balancing test of Rule 403.
United States v. Mills, 138 F.3d 928, 935 (11th Cir. 1998); United States v.
Cancelliere, 69 F.3d 1116, 1124 (11th Cir. 1995). The Government bears the
burden of proving the admissibility of extrinsic evidence under Rule 404(b). Mills,
138 F.3d at 935. Under Rule 404(b) extrinsic evidence of other crimes, wrongs, or
acts is inherently prejudicial to the defendant. United States v. Beechum, 582 F.2d
898, 910 (5th Cir.1978) (en banc). “One of the dangers inherent in the admission
of extrinsic offense evidence is that the jury may convict the defendant not for the
offense charged but for the extrinsic offense.” Id. at 914. In addition, extrinsic
evidence “may lead [the jury] to conclude that, having committed a crime of the
type charged, [the defendant] is likely to repeat it.” Id. (quotation marks omitted).
Either inference is directly contrary to the long-standing rule that propensity to
commit crimes should not be the basis of a conviction. Id.
5
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The Eleventh Circuit requires that “other offense” evidence directly and
logically bear on a relevant issue and not just show propensity. In United States v.
Mills, 138 F.3d 928 (11th Cir. 1998), the defendant was charged with violating 18
U.S.C. § 1001 by making false claim on an airplane passenger manifest for
reimbursement of travel expenses under Medicare. The Government introduced
evidence of a prior act where the defendant lied on a customs declaration about a
jewelry purchase upon returning to the United States from overseas travel. On
appeal, the government argued that the first prong was satisfied because the
customs incident was relevant to the defendant’s intent; it showed her willingness
to engage in intentional deception of government agents for personal gain. Id. at
936. The Eleventh Circuit, however, easily identified the improper inference that
the government wanted the jury to draw: that the defendant was disposed to lie to
the government; therefore, being a liar, she must have intended to lie on the
passenger manifests in the case on trial. Id. The Eleventh Circuit held that this sort
of evidence is precisely what Rule 404(b) prohibits and found that the trial court
erred. Id. The forms and the context of the representations were too dissimilar.
The Eleventh Circuit has upheld the exclusion of prior dissimilar criminal
acts as improper 404(b) evidence. See generally, United States v. Lail, 846 F.2d
1299, 1301 (11th Cir. 1988) (reversible error to admit uncharged bank robbery as
6
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404(b) evidence in bank robbery case to show identity because dissimilarity);
United States v. Utter, 97 F.3d 509, 514 (11th Cir. 1996) (in arson prosecution,
reversible error to admit evidence of a fire at defendant’s residence on different
occasion due to deficient proof that defendant started other fire, i.e., committed the
extrinsic act); United States v. Young, 39 F.3d 1561, 1573 (11th Cir.1994)
(evidence of moonshining is not relevant to intent to distribute marijuana because
the acts are not sufficiently similar even though both involved covert possession of
a substance for distribution).
The government claims the evidence of two birth dates meets the Rule
404(b) requirements for three reasons:
1) Here, the evidence of Defendant’s use of the two birthdates and
acquisition of the two SSNs is directly relevant to identity and intent.
First, the evidence, which would be presented through competent
witness testimony, helps prove that it was indeed Defendant who
submitted both fraudulent tax returns.
2) Second, the evidence demonstrates Defendant’s intent to defraud
the IRS by submitting two different tax returns that included false
information.
. . . .
3) This evidence is also probative of knowledge and intent
concerning Defendant changing his name from Carl Torjagbo to Karl
Delano. When interviewed by law enforcement, Defendant claimed
that he changed his name “because [his old] last name was hard to
pronounce.” (Doc. 145 at 28). The Government contends that he
changed his name in an effort to conceal his fraudulent acquisition of
7
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millions of dollars. Defendant previously shifted his identity by
obtaining a new SSN based on a different date of birth. This fact
shows that Defendant’s intent in changing his name was not as
innocuous as he says it was, but rather was designed to conceal his
fraud schemes.
(Gov. 404(b) Notice, Doc. 196-pp.4-5).
The government’s arguments stretch logic too far and are non-persuasive.
First, it is worth noting the birth dates differ only by the years: 1979 and 1975.
Both SSNs were obtained in the name CARL DELANO TORJAGBO. The month
and day born are identical for both SSN accounts. Absent discovery on this issue,
the Defendant can only assume the Social Security Administration or some other
bureaucratic agency in the United States or Ghana made a typographical error.
Again, birth dates are not listed on the tax returns, only the SSNs were submitted.
The different birth dates being associated with Social Security accounts do
not establish identity. The tax returns at issue were filed through use of a computer
and the Turbo Tax program. The government must prove the identity of the filer or
the filers of each return. The existence of different birth dates, or even different
SSNs, does not prove the Defendant filed the tax returns.
Similarly, the fact that different birth years were associated with different
SSNs in 1997 and 2005 does not establish Mr. Delano’s intent to defraud the IRS
in 2021. Last, the government’s argument that the different birth years, associated
8
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with his SSNs in 1997 and 2005, proves that his name change in 2021was
designed to conceal his fraud scheme, is almost absurd. This argument builds
straws upon weak straws.
Here, the governments attempt to introduce evidence of two different birth
dates and Social Security fraud will likely lead the jury to conclude that Mr.
Delano is guilty of offenses for which he is on trial, because he allegedly
committed a prior fraud in obtaining his Social Security Numbers. This evidence
suggests nothing more than bad character, in violation of Rule 404(a), and a
propensity to commit crimes, in violation of Due Process and United States v.
Beechum, 582 F.2d 898, 910 (5th Cir.1978) (en banc).
Even if the proposed extrinsic evidence did meet the requirements of Rule
404(b), which it does not, it is more unfairly prejudicial than probative, and must
be excluded under the balancing test of Rule 403.
WHEREFORE, for the reasons stated above, Mr. Delano requests that the
Court exclude the evidence identified in the government’s notice, and requests a
9
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hearing on the government’s notice of intent to use 404(b) evidence and his
motion to exclude the same.
Dated: This 8th day of July, 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
10
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CERTIFICATE OF SERVICE
This is to certify that I have this day electronically filed this 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 8th day of July, 2025.
s/ L. Burton Finlayson
L. BURTON FINLAYSON
ATTORNEY FOR DEFENDANT
Georgia Bar Number: 261460
11
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