RESPONSE in Opposition as to Carl Delano Torjagbo filed by USA re 208 MOTION to Dismiss… — USA v. Torjagbo (Dkt. 212)

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 212 · 2025-07-14 · Docket on CourtListener

Summary

The government's response in opposition to the defendant's motion to dismiss (Doc. 208) in United States of America v. Carl Delano Torjagbo, Criminal Action No. 1:22-CR-171-MLB-RDC, in the U.S. District Court for the Northern District of Georgia, filed July 14, 2025. The motion sought dismissal of Counts 2 and 3 of the Third Superseding Indictment as duplicitous because the indictment refers to the use of two SSNs. The government argues that each count charges only one offense, wire fraud based on a tax return filed with the IRS on February 13, 2021, claiming refunds of $3,373,441.00 and $3,015,573.00, and that any jury confusion can be cured with a limiting instruction. A footnote states the court has already denied the motion by docket entry and the response is filed to put the government's position on the record. The five-page filing is Document 212.

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Full text

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
UNITED STATES OF AMERICA 
v. 
CARL DELANO TORJAGBO A/K/A 
KARL LUCIUS DELANO 
 
Criminal Action No. 
1:22-CR-171-MLB-RDC 
 
Response in Opposition to Defendant’s Motion to Dismiss [208] 
The United States of America, by Theodore S. Hertzberg, United States 
Attorney, and Kelly K. Connors and Nicholas L. Evert, Assistant United States 
Attorneys for the Northern District of Georgia, files this Response in Opposition 
to Defendant’s Motion to Dismiss.  
Defendant has moved to dismiss Counts 2 and 3 of the Third Superseding 
Indictment as duplicitous. Because these Counts clearly only charge Defendant 
with one crime each—wire fraud based on his submission of fraudulent tax 
returns to the IRS—Defendant’s Motion to Dismiss (Doc. 208) should be denied.1   
1. Background 
Counts 2 and 3 of the Third Superseding Indictment charge Defendant with 
“devis[ing], intend[ing] to devise, and participat[ing] in a scheme and artifice to 
defraud the United States Department of the Treasury, Internal Revenue Service 
 
1 The Court has denied this motion by docket entry, but indicated that it will 
address the matter further at the start of trial. The Government files this response 
to have its position on the record.  
Case 1:22-cr-00171-MLB-RDC     Document 212     Filed 07/14/25     Page 1 of 5

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(‘IRS’), and to obtain money from the IRS by means of materially false and 
fraudulent pretenses, representations, and promises, and by the omission of 
material facts.” (Doc. 198 ¶¶ 14–21). Specifically, Count 2 charges wire fraud 
based on Defendant’s February 13, 2021 “[e]lectronic filing of a 2020 U.S. 
individual income tax return (Form 1040), in the name of Carl Torjagbo, which 
fraudulently claimed a refund in the amount of $3,373,441.00[.]” (Id. ¶ 21). Count 
3 charges wire fraud based on Defendant’s February 13, 2021 “[e]lectronic filing 
of a 2020 U.S. individual income tax return (Form 1040), in the name of Carl 
Torjagbo, which fraudulently claimed a refund in the amount of $3,015,573.00[.]” 
(Id.). The “manner and means” section explains, among other things, that “[o]n 
one of the fraudulent tax returns, Defendant Torjagbo used a Social Security 
Number (SSN) that was associated with a date of birth in 1979” and “[o]n the 
other fraudulent tax return, Defendant Torjagbo used a different SSN that was 
associated with a date of birth in 1975[.]” (Id. ¶¶ 19–20). 
Defendant claims in his Motion to Dismiss that because the Third 
Superseding Indictment makes reference to the use of two SSNs, Counts 2 and 3 
are duplicitous and thus subject to dismissal. Defendant is incorrect.  
2. Argument 
“A count in an indictment is duplicitous if it charges two or more separate 
and distinct offenses.” United States v. Seher, 562 F.3d 1344, 1360 (11th Cir. 2009). 
A count is not duplicitous merely because it describes factual matter that could 
constitute another criminal offense. See United States v. Buckingham, No. 4:18-CR-
00376-RDP-JEO-2, 2018 WL 6570874, at *3 (N.D. Ala. Dec. 13, 2018) (“A 
Case 1:22-cr-00171-MLB-RDC     Document 212     Filed 07/14/25     Page 2 of 5

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duplicitous count is one that charges two or more separate offenses, not one that 
merely describes factual matter relevant to proving more than one criminal 
offense.” (emphasis in original)); United States v. Atl. Comm’n Co., 45 F. Supp. 187, 
193 (E.D.N.C. 1942) (“An indictment charging only one offense is not duplicitous 
merely because it discloses in its relevant facts that the defendants have 
committed an additional offense.”).  
Here, Defendant complains that he “worries he may be convicted by a non-
unanimous jury, with some convicting him for fraud on the Social Security 
Administration and others convicting him for wire fraud upon the IRS, the 
charged offense.” (Doc. 208 at 3–4). “He also worries the allegations of this 
separate crime ‘muddies the water’ and perhaps makes it easier for the 
government to introduce otherwise inadmissible prior bad acts.” (Id. at 4).2 These 
concerns are unfounded. The Third Superseding Indictment could not be clearer 
that Defendant is only charged with defrauding the IRS in Counts 2 and 3. To the 
extent there are any concerns about jury confusion, these can easily be cured with 
a limiting instruction. Accordingly, Counts 2 and 3 are not duplicitous, and the 
Motion to Dismiss should be denied.  
 
 
 
2 Defendant “also worries about subsequent prosecutions in Florida, Texas or 
even the Northern District of Georgia for fraud upon the Social Security 
Administration[.]” (Doc. 208 at 4). However, he fails to explain why this “worry” 
somehow entitles him to the dismissal of his charges for defrauding the IRS.  
Case 1:22-cr-00171-MLB-RDC     Document 212     Filed 07/14/25     Page 3 of 5

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3. Conclusion 
For the reasons set forth above, Defendant’s Motion to Dismiss (Doc. 208) 
should be denied.
Respectfully submitted, 
THEODORE S. HERTZBERG 
United States Attorney 
/s/KELLY K. CONNORS 
Assistant United States Attorney 
Georgia Bar No. 504787 
Kelly.Connors@usdoj.gov 
/s/NICHOLAS L. EVERT 
Assistant United States Attorney 
Georgia Bar No. 693062 
Nicholas.Evert@usdoj.gov 
600 U.S. Courthouse 
75 Ted Turner Drive S.W. 
Atlanta, GA 30303 
Tel: (404) 581-6000; Fax: (404) 581-6181 
Case 1:22-cr-00171-MLB-RDC     Document 212     Filed 07/14/25     Page 4 of 5

 
Certificate of Service 
The United States Attorney’s Office served this document today by filing it using 
the Court’s CM/ECF system, which automatically notifies the parties and counsel 
of record. 
July 14, 2025 
 
/s/ NICHOLAS L. EVERT 
 
NICHOLAS L. EVERT 
 
Assistant United States Attorney 
 
Case 1:22-cr-00171-MLB-RDC     Document 212     Filed 07/14/25     Page 5 of 5

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