As used in this chapter, the term:
(Code 1933, § 26-3402, enacted by Ga. L. 1980, p. 405, § 1; Ga. L. 1982, p. 1385, §§ 2, 8; Ga. L. 1983, p. 3, § 13; Ga. L. 1984, p. 22, § 16; Ga. L. 1989, p. 14, § 16; Ga. L. 1990, p. 8, § 16; Ga. L. 1994, p. 1625, § 4; Ga. L. 1996, p. 416, § 8; Ga. L. 1998, p. 128, § 16, Ga. L. 1998, p. 270, § 7; Ga. L. 1999, p. 81, § 16; Ga. L. 2001, p. 858, § 1; Ga. L. 2002, p. 551, § 3; Ga. L. 2002, p. 1284, § 3; Ga. L. 2003, p. 387, § 1; Ga. L. 2004, p. 60, § 2; Ga. L. 2004, p. 161, § 4; Ga. L. 2005, p. 199, § 5/SB 62; Ga. L. 2005, p. 848, § 3/SB 100; Ga. L. 2006, p. 69, § 2/HB 804; Ga. L. 2008, p. 381, § 9/SB 358; Ga. L. 2010, p. 1147, § 8/HB 1104; Ga. L. 2011, p. 59, § 1-64/HB 415; Ga. L. 2011, p. 752, § 16/HB 142; Ga. L. 2012, p. 90, § 2/HB 997; Ga. L. 2012, p. 637, § 2/HB 1114; Ga. L. 2012, p. 899, § 8-6/HB 1176; Ga. L. 2015, p. 5, § 16/HB 90; Ga. L. 2015, p. 598, § 1-4/HB 72; Ga. L. 2015, p. 693, § 2-25/HB 233; Ga. L. 2019, p. 74, § 2-5/SB 158; Ga. L. 2020, p. 493, § 16/SB 429.)
The 2019 amendment, effective July 1, 2019, substituted "pimping, and pandering in violation of Code Sections 16-6-9 through 16-6-12;" for "pimping, pandering, and pandering by compulsion in violation of Code Sections 16-6-9 through 16-6-12 and 16-6-14;" in division (5)(A)(vii). See Editor's note for applicability.
The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, substituted "Code Section 16-11-220" for "Code Section 16-4-10" in subparagraph (4)(B).
Editor's notes.- Ga. L. 1994, p. 1625, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Anti-motor Vehicle Hijacking Act of 1994'."
Ga. L. 2001, p. 858, § 2, not codified by the General Assembly, provides that this Act shall apply with respect to a pattern of racketeering activity where at least one act of racketeering activity occurs on or after July 1, 2001. Prior law shall continue to apply with respect to a pattern of racketeering activity which does not include at least one act of racketeering activity occurring on or after July 1, 2001.
Ga. L. 2002, p. 1284, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as 'Georgia's Homeland Defense Act'."
Ga. L. 2002, p. 1284, § 4, not codified by the General Assembly, provides, in part, that the provisions of this Act defining, redefining, or changing the punishment for crimes shall apply with respect to acts committed on or after May 16, 2002; and in these respects prior law shall continue to apply with respect to acts committed prior to May 16, 2002.
Ga. L. 2004, p. 161, § 16, not codified by the General Assembly, provides: "All appointments of guardians of the person or property made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act."
Ga. L. 2005, p. 199, § 1/SB 62, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Slam Spam E-mail Act.'"
Ga. L. 2005, p. 199, § 2/SB 62, not codified by the General Assembly, provides: "The General Assembly finds and declares that electronic mail has become an important and popular means of communication, relied on by millions of Georgians on a daily basis for personal and commercial purposes. The low cost and global reach of electronic mail make it convenient and efficient. Electronic mail serves as a catalyst for economic development and frictionless commerce. The General Assembly further finds that the convenience and efficiency of electronic mail is threatened by an ever-increasing glut of deceptive commercial electronic mail. The senders of these electronic messages engage in a variety of fraudulent and deceptive practices to hide their identities, to disguise the true source of their electronic mail, and to evade the criminal and civil consequences of their actions. Deceptive commercial electronic mail imposes costs upon its ultimate recipients who are forced to receive, review, and delete unwanted messages and upon the electronic mail service providers forced to carry the messages. The General Assembly further finds that our state has a paramount interest in protecting its businesses and citizens from the deleterious effects of deceptive commercial electronic mail, including the impermissible shifting of cost and economic burden that results from the false and fraudulent nature of deceptive commercial electronic mail. Georgia's enforcement of this interest imposes no additional burden upon the senders of such electronic mails in relation to the laws of any other state, in that such enforcement requires nothing more than the senders' forbearance from active deception."
Ga. L. 2005, p. 848, § 1/SB 100, not codified by the General Assembly, provides: "The General Assembly finds and declares that fraud involving residential mortgages is at an all-time high in the United States and in Georgia. Mortgage lending institutions and borrowers have suffered hundreds of millions of dollars in losses due to residential mortgage fraud. Homeowners in neighborhoods plagued by mortgage fraud have witnessed the deterioration of their neighborhoods. Fraudulently inflated property values in their neighborhoods have resulted in substantial increases in property taxes. The General Assembly therefore concludes that for the protection of the general public, and particularly for the protection of borrowers, homeowners, lending institutions, and the integrity of the mortgage lending process, the 'Georgia Residential Mortgage Fraud Act' shall be enacted."
Ga. L. 2011, p. 59, § 1/HB 415, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Jury Composition Reform Act of 2011.'".
Ga. L. 2012, p. 637, § 4/HB 1114, not codified by the General Assembly, provides that: "This Act shall not apply to any offense committed before the effective date of this Act." This Act became effective May 1, 2012.
Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."
Ga. L. 2015, p. 5, § 54(e)/HB 90, not codified by the General Assembly, provides: "In the event of a conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2015 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to this Code section by Ga. L. 2015, p. 5, § 16/HB 90, was not given effect.
Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."
Ga. L. 2019, p. 74, § 1-1/SB 158, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Anti-Human Trafficking Protective Response Act.'"
Ga. L. 2019, p. 74, § 3-1/SB 158, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2019, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2019, shall be governed by the statute in effect at the time of such offense, and any resulting conviction shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction."
Law reviews.- For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For review of 1998 legislation relating to crimes and offenses, see 15 Ga. St. U.L. Rev. 80 (1998). For article on 2004 amendment of this Code section, see 21 Ga. St. U.L. Rev. 59 (2004). For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 49 (2005). For article, "Crimes and Offenses," see 27 Ga. St. U.L. Rev. 209 (2011). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 278 (2012). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 63 (2015). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 63 (2019). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 99 (1994). For note on the 2002 amendment of this Code section, see 19 Ga. St. U.L. Rev. 95 (2002).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- Paragraphs defining "enterprise" and "pattern of racketeering" are not unconstitutionally vague or overbroad. Chancey v. State, 256 Ga. 415, 349 S.E.2d 717 (1986), cert. denied, 481 U.S. 1029, 107 S. Ct. 1954, 95 L. Ed. 2d 527 (1987).
Federal jurisdiction.
- Jurisdiction under 28 U.S.C. § 1331 did not exist in a borrower's suit asserting various claims against a lender and an appraiser in connection with a loan that encumbered the borrower's property with a debt that exceeded the property's value. Although the borrower alleged that the lender violated 18 U.S.C. §§ 1341, 1343 as predicate acts under former paragraph (9)(A) of O.C.G.A. § 16-14-3 of Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act, O.C.G.A. § 16-14-1 et seq., that did not require the court to interpret the federal statutes; further, the borrower also asserted that the lender violated state statutes that could serve as predicate acts under Georgia's RICO law. Austin v. Ameriquest Mortg. Co., 510 F. Supp. 2d 1218 (N.D. Ga. Feb. 27, 2007).
Under the look-through rule, a hypothetical coercive claim was the basis for federal jurisdiction over petitioner bank's Federal Arbitration Act petition, but petitioner payday loan companies' arbitration petition was precluded by a related underlying state court judgment holding the companies in contempt and, striking the companies' arbitration defenses under O.C.G.A. § 9-11-37(b)(2) to respondent borrower's suit alleging violations of Georgia's usury statute, O.C.G.A. § 7-4-1, et seq.; Georgia's Industrial Loan Act, O.C.G.A. § 7-3-1 et seq.; and Georgia's Racketeer Influenced and Corrupt Organizations statute, O.C.G.A. § 16-14-1 et seq. Cmty. State Bank v. Strong, 651 F.3d 1241 (11th Cir. 2011), cert. denied, 568 U.S. 813, 133 S. Ct. 101, 184 L. Ed. 2d 22 (2012).
Legislative intent as to scope.
- Legislature intended to subject to the coverage of the Racketeer Influenced Corrupt Organizations (RICO) statute two crimes, included in the statute as designated predicate acts, which are part of the same scheme, without the added burden of showing that defendant would continue the conduct or had been guilty of like conduct before the incidents charged as a RICO violation. Dover v. State, 192 Ga. App. 429, 385 S.E.2d 417 (1989).
Definition of pattern of racketeering satisfied.
- Definition of a "pattern of racketeering activity" as set forth in former paragraph (8) of O.C.G.A. § 16-14-3 of "at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents" was satisfied when the state established a number of interrelated incidents of racketeering activity that had the same intents and results (monetary gain) and the same accomplices (the defendants and other members of the group). Overton v. State, 295 Ga. App. 223, 671 S.E.2d 507 (2008), cert. denied, No. S09C0654, 2009 Ga. LEXIS 212 (Ga. 2009).
As a defendant was only charged with racketeering, in violation of O.C.G.A. § 16-14-4(a), based on the predicate offense of forgery, in violation of O.C.G.A. § 16-9-1, the defendant's requested jury instruction of a lesser-included offense of forgery was properly denied by the trial court; if the jury had not found a "pattern of racketeering activity" under O.C.G.A. § 16-14-3, the jury could not have convicted the defendant of forgery. Redford v. State, 309 Ga. App. 118, 710 S.E.2d 197 (2011).
Trial court erred by failing to dismiss the plaintiff's claim for theft as a predicate offense under the Georgia RICO statute, O.C.G.A. § 16-14-1 et seq., because a fraudulent transfer was not an enumerated predicate offense under the Georgia RICO statute, but instead, a civil tort governed by the Uniform Voidable Transactions Act, O.C.G.A. § 18-2-70 et seq. Z-Space, Inc. v. Dantanna's CNN Center, LLC, 349 Ga. App. 248, 825 S.E.2d 628 (2019).
Legitimate corporation or enterprise.
- In an action against the corporate operator of a treatment program for violations of the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., the fact that the operator was a legitimate corporation did not insulate the corporation from liability under the act. Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259, 447 S.E.2d 617 (1994).
Predicate acts under RICO shown.
- When the predicate acts necessary to prove a pattern of racketeering activity were proved as a matter of law through the superior court's conclusive, factual determination that the company of which defendant was an officer was operated in such a manner as "to perpetrate fraud and injustice upon Georgia consumers, of which the plaintiff was one," the appellate court presumed the correctness of this finding and the sufficiency of the factual basis therefor. Speir v. Krieger, 235 Ga. App. 392, 509 S.E.2d 684 (1998).
Evidence was sufficient to support the conclusion that defendant committed at least two of the predicate acts charged against defendant after it was shown that defendant's possession of items commonly used in connection with drug distribution schemes was similar or related to other predicate acts. Davitte v. State, 238 Ga. App. 720, 520 S.E.2d 239 (1999).
To prove a RICO violation, the state had to show that the defendant committed two or more predicate criminal acts indictable under the RICO statute as part of an enterprise engaging in a pattern of racketeering activity. Jones v. State, 252 Ga. App. 332, 556 S.E.2d 238 (2001).
To prove a violation of the Racketeer Influence and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., the state is required to show that a defendant engaged in at least two predicate criminal acts that would amount to racketeering activity as defined in former paragraph (9) of O.C.G.A. § 16-14-3; thus, evidence was sufficient to sustain defendant's conviction under RICO for selling fake badges for a golf tournament to a ticket agency because the evidence revealed at least four predicate acts as defined in former paragraph (9) of O.C.G.A. § 16-14-3 - three incidents of theft by deception for defendant receiving money on three different occasions for various sets of fake badges, O.C.G.A. §§ 16-8-3 and 16-14-3, and one incident of first-degree forgery for making the fake badges and delivering them to the ticket agency for payment, O.C.G.A. §§ 16-9-1(a) and 16-14-3. Davis v. State, 264 Ga. App. 128, 589 S.E.2d 700 (2003).
In a prosecution under the Georgia Racketeering Influenced and Corrupt Organizations Act O.C.G.A. § 16-14-1 et seq., the trial court properly allowed attempt and solicitation of murder to be used as predicate offenses, as the offenses clearly fell within the scope of former subdivisions (9)(A) and (9)(B) of O.C.G.A. § 16-14-3 and the defendant's merger argument was rejected as the two RICO offenses contained different elements and required independent proof of each element. Dorsey v. State, 279 Ga. 534, 615 S.E.2d 512 (2005).
Evidence was sufficient to convict the defendant on 29 counts of theft by taking and racketeering because the defendant, while the director and a fiduciary of the animal shelter, transferred a series of donations intended for the animal shelter into the defendant's own personal bank accounts; the defendant expressly admitted that the subject transactions involved donation money intended for and belonging to the animal shelter; two members of the Board of Directors of the animal shelter testified unequivocally that the defendant was never authorized to solicit funds and deposit the funds into the defendant's personal bank accounts; and the racketeering charge was predicated upon four separate indicted incidents of theft by taking. Kilby v. State, 335 Ga. App. 238, 780 S.E.2d 411 (2015), cert. denied, No. S16C0653, No. S16C0653, 2016 Ga. LEXIS 437 (Ga. 2016).
Ample evidence supported the defendant's convictions of two predicate acts of theft or money laundering to support RICO charges because the victim testified that the victim never authorized the defendant to take $3.5 million and the victim's court appointed conservator also testified that the defendant engaged in egregious transactions whereby multiple checks were written to the defendant from the widow's accounts with no clear purpose or benefit to the widow. Carr v. State, 350 Ga. App. 461, 829 S.E.2d 641 (2019), cert. denied, No. S19C1422, 2020 Ga. LEXIS 15 (Ga. 2020).
Sufficiency of complaint.
- When a complaint alleged that the defendants conducted an enterprise through a pattern of racketeering activity, the requisite predicate acts for showing a "pattern of racketeering activity" were set forth in detail in the complaint, and the complaint further alleged that these offenses were not committed as an occasional practice but were part of a systematic and ongoing pattern over a number of years concealed by a scheme of subterfuge and intimidation, the trial court properly denied the defendant's motion for judgment on the pleadings or for summary judgment. Larson v. Smith, 194 Ga. App. 698, 391 S.E.2d 686 (1990).
Sale of timber from a single parcel of real property, by means of a single deed, in one isolated transaction, could not be broken down into two predicate acts by separately charging the sale and the filing of the deed. Raines v. State, 219 Ga. App. 893, 467 S.E.2d 217 (1996).
Trial court erred by dismissing the plaintiff's mail and wire fraud claims as a predicate offense under the RICO statute because the proper remedy was allowing the plaintiff to file a more definite statement as to those claims. Z-Space, Inc. v. Dantanna's CNN Center, LLC, 349 Ga. App. 248, 825 S.E.2d 628 (2019).
Sufficiency of complaint.
- Trial court erred by dismissing the plaintiff's complaint for failure to state a claim because the plaintiff pled viable claims for fraud, negligent misrepresentation, and civil racketeering based on the defendant filing a medical lien seeking full chargemaster rate or sticker price of the defendant's medical procedures, which did not represent a reasonable charge for the treatment received with the intent to collect more than a reasonable charge for the services rendered to the plaintiff. Clouthier v. Medical Center of Central Georgia, Inc., 351 Ga. App. 883, 833 S.E.2d 584 (2019).
Venue.
- Venue for charges under the Georgia Racketeer and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., was proper against one of the three defendants in Cobb County pursuant to O.C.G.A. § 16-14-11, even though the defendant was acquitted of a conspiracy charge and the defendant personally committed no acts in Cobb County. Lowery v. State, 347 Ga. App. 26, 815 S.E.2d 625 (2018).
Cited in Western Bus. Sys. v. Slaton, 492 F. Supp. 513 (N.D. Ga. 1980); Evans v. State, 252 Ga. 312, 314 S.E.2d 421 (1984); Mills v. Fitzgerald, 668 F. Supp. 1554 (N.D. Ga. 1987); Bohannon v. Allstate Ins. Co., 118 F.R.D. 151 (S.D. Ga. 1986); Cobb v. Kennon Realty Servs., Inc., 191 Ga. App. 740, 382 S.E.2d 697 (1989); Emrich v. Winsor, 198 Ga. App. 333, 401 S.E.2d 76 (1991); Bethune v. State, 198 Ga. App. 490, 402 S.E.2d 276; Drewry v. State, 201 Ga. App. 674, 411 S.E.2d 898 (1991); Johnson v. Fleet Fin., Inc., 785 F. Supp. 1003 (S.D. Ga. 1992); Cobb County v. Jones Group, 218 Ga. App. 149, 460 S.E.2d 516 (1995); Olukoya v. American Ass'n of Cab Cos., 219 Ga. App. 508, 465 S.E.2d 715 (1995); Brown v. Freedman, 222 Ga. App. 213, 474 S.E.2d 73 (1996); Brannon v. State, 243 Ga. App. 28, 530 S.E.2d 761 (2000); Markowitz v. Wieland, 243 Ga. App. 151, 532 S.E.2d 705 (2000); Tom's Amusement Co. v. Total Vending Servs., 243 Ga. App. 294, 533 S.E.2d 413 (2000); Nicholson v. Windham, 257 Ga. App. 429, 571 S.E.2d 466 (2002); Club Car, Inc. v. Club Car (Quebec) Import, Inc., 276 F. Supp. 2d 1276 (S.D. Ga. 2003); Schoenbaum Ltd. Co., LLC v. Lenox Pines, LLC, 262 Ga. App. 457, 585 S.E.2d 643 (2003); Saxon v. State, 266 Ga. App. 547, 597 S.E.2d 608 (2004); Club Car, Inc. v. Club Car (Quebec) Imp., Inc., 362 F.3d 775 (11th Cir.); Faillace v. Columbus Bank & Trust Co., 269 Ga. App. 866, 605 S.E.2d 450 (2004); J. Kinson Cook of Ga., Inc. v. Heery/Mitchell, 284 Ga. App. 552, 644 S.E.2d 440 (2007); Smith v. Chemtura Corp., 297 Ga. App. 287, 676 S.E.2d 756 (2009); Williams v. Mohawk Indus., 568 F.3d 1350 (11th Cir. 2009); Cisco v. State, 285 Ga. 656, 680 S.E.2d 831 (2009); Summit Auto. Group, LLC v. Clark Kia Motors Ame., Inc., 298 Ga. App. 875, 681 S.E.2d 681 (2009); Jannuzzo v. State, 322 Ga. App. 760, 746 S.E.2d 238 (2013); Mbigi v. Wells Fargo Home Mortg., 336 Ga. App. 316, 785 S.E.2d 8 (2016); Roberts v. State, 344 Ga. App. 324, 810 S.E.2d 169 (2018); Boyd v. State, 306 Ga. 204, 830 S.E.2d 160 (2019).
Application
Mail fraud is a predicate act under Georgia RICO.
- See Georgia ex rel. Bowers v. Dairymen, Inc., 813 F. Supp. 1580 (S.D. Ga. 1991).
In a case in which the beneficiaries of two life insurance policies could not directly recover civil damages under 18 U.S.C. §§ 1341, 1342, or 1343, pursuant to O.C.G.A. § 16-14-3, the beneficiaries could rely on the insurance company's alleged violation of the federal mail and wire fraud statutes to supply the necessary predicate acts to support a Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., claim. Am. Gen. Life & Accident Ins. Co. v. Ward, 509 F. Supp. 2d 1324 (N.D. Ga. Mar. 12, 2007).
Federal mail and wire fraud are predicate acts of racketeering under the Georgia civil RICO statute, O.C.G.A. § 16-14-1 et seq. Ayres v. GMC, 234 F.3d 514 (11th Cir. 2000).
Fraud in stock purchase contract.
- In an action for a RICO violation, plaintiffs presented evidence to create a material issue of fact as to whether defendant engaged in predicate acts of criminal fraud, i.e., theft by deception, arising from defendant's purchase of plaintiff's stock in a software development company. Willis v. First Data Pos, Inc., 245 Ga. App. 121, 536 S.E.2d 198 (2000).
Predicate acts under RICO not shown.
- Failure of an insurance company to file a policy with the Georgia Insurance Department and the failure of its agent to have a certificate of authority issued by the company before selling the policy to insureds were not predicate acts for purposes of the Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq. Security Life Ins. Co. v. Clark, 229 Ga. App. 593, 494 S.E.2d 388 (1997), aff'd in part and rev'd in part, 270 Ga. 165, 509 S.E.2d 602 (1998). But see Clark v. Security Life Ins. Co. of Am., 270 Ga. 165, 509 S.E.2d 602 (1998). See also Security Life Ins. Co. of Am. v. Clark, 273 Ga. 44, 535 S.E.2d 234 (2000); Williams General Corporation v. Stone, 280 Ga. 631, 632 S.E.2d 376 (2006).
When, in neither the complaint nor the evidence in opposition to a motion for summary judgment, did the plaintiffs produce evidence raising the issue that the defendants committed two predicate criminal acts indictable under state or federal law and within one of the categories allowing an action under the Racketeer Influenced Corrupt Organization statute, O.C.G.A. § 16-14-1 et seq., summary judgment for the defendant was proper. Roth v. Connor, 235 Ga. App. 866, 510 S.E.2d 550 (1998).
Plaintiff's Racketeer Influenced and Corrupt Organization allegations against defendants were predicated on misleading press releases, which were public statements by another person not shown to be acting on defendant's behalf, and, even if assumed to be true, would not constitute two separate and distinct, criminal "predicate acts" committed by the defendant. Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 236 Ga. App. 181, 511 S.E.2d 558 (1999), rev'd on other grounds, 272 Ga. App. 209, 528 S.E.2d 508 (2000).
In a product liability action against an auto manufacturer claiming Racketeer Influenced and Corrupt Organizations Act (O.C.G.A. § 16-14-1 et seq.) violations, plaintiffs failed to establish violations of O.C.G.A. § 16-10-20 and 18 USC §§ 1341 or 1343 as predicate offenses. Gentry v. Volkswagen of Am., Inc., 238 Ga. App. 785, 521 S.E.2d 13 (1999).
Because there was no evidence that a broker obtained a manufacturer's bond premium by deceitful means with the intention of depriving the manufacturer of those funds, or that the broker knowingly converted the funds to its own use in violation of the oral agreement, the evidence showed that once the broker received the premium, it instructed an insurance company to proceed with posting the bonds, and it was only after being contacted by the manufacturer that the broker was put on notice that there was a problem with the posting of the bonds, the manufacturer's claims of theft were not supported by the record, and the manufacturer failed to show two predicate acts to support a pattern of racketeering activity; therefore, the trial court did not err in granting summary judgment to the broker on the manufacturer's claim under Georgia's Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq. Aon Risk Servs. v. Commercial & Military Sys. Co., 270 Ga. App. 510, 607 S.E.2d 157 (2004).
Poultry growers failed to prove a claim against poultry processing companies under the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., because the growers failed to prove the two alleged predicate acts of mail fraud and theft by deception. Adkins v. Cagle Foods JV, L.L.C., 411 F.3d 1320 (11th Cir. 2005).
Financial planner failed to demonstrate that the insurance company committed any predicate acts to support a claim under the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act O.C.G.A. § 16-14-1 et seq.,, specifically O.C.G.A. § 16-14-3, and the planner's RICO claim against the insurance company was necessarily dismissed because the planner did not claim that the insurance company even knew about the "no detriment to the planner" provision in the settlement agreement, and thus, the insurance company could not have intended to aid the parent company and the subsidiary in stealing the planner's chose of action, the planner had not alleged facts sufficient to state a plausible claim for theft on the claim's face, and an accessory after the fact could not be an accomplice to the crime. Rosen v. Protective Life Ins. Co., F. Supp. 2d (N.D. Ga. May 20, 2010).
Trial court did not err in granting a seller summary judgment on purchasers' RICO claim based on mail fraud because any injury was not proximately caused by the alleged misrepresentations of the seller but by the purchasers' decision to go forward with the purchase despite knowledge of the facts as to which the purchasers were supposedly misled; multiple transactions arising out of a pattern of racketeering activity were not alleged, only the sale of a single townhome unit to the purchasers. Pollman v. Swan, 314 Ga. App. 5, 723 S.E.2d 290 (2011).
Former employee's Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., claim, alleging the former employer was defrauding customers and engaging in racial discrimination, failed because there was no evidence the employee was injured by the commission of any predicate acts, and despite the employee's apparent argument to the contrary, racial discrimination was not listed under former paragraph (9) of O.C.G.A. § 16-14-3 as a predicate act. Giles v. BellSouth Telecomms., Inc., F.3d (11th Cir. 2013)(Unpublished).
District court did not err by granting the company summary judgment on the probationer's Georgia RICO claim because the company produced three sworn statements asserting that the two letters demanding payment and threatening the probationer's arrest were sent because of a clerical error and not with the intent to deceive the probationer into paying money the probationer did not owe. The probationer failed to allege or present any evidence that an employee of the company acted with specific intent to commit theft by deception. McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236 (11th Cir. 2013).
Employee's civil claim against an employer for failure to pay agreed-upon severance under the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., based on theft by deception, O.C.G.A. § 16-8-3(a), failed because there was no evidence that the employee relied on the allegedly inadequate severance checks sent to the employee or that the employee was actually deceived by the checks. Vernon v. Assurance Forensic Accounting, LLC, 333 Ga. App. 377, 774 S.E.2d 197 (2015), cert. denied, No. S15C1837, 2015 Ga. LEXIS 864 (Ga. 2015).
Court properly dismissed the claim under O.C.G.A. § 16-14-3 after dismissing the wrongful foreclosure claim because the mortgagors had to successfully plead wrongful foreclosure to move forward. Duncan v. CitiMortgage, Inc., F.3d (11th Cir. 2015)(Unpublished).
Owner of rental properties failed to show that a mortgage loan servicer engaged in a pattern of racketeering activity since the servicer's continuing refusal to correct a significant and evident error in escrow payments constituted a single extended transaction, even if two separate crimes could be implicated in the transaction. McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241 (11th Cir. 2016).
Prosecuting attorney failed to allege RICO claims in either the attorney's first or proposed second amended complaint with the specificity required by Fed. R. Civ. P. 9(b) as both of the complaints consisted of mostly vague and conclusory allegations which failed to assert the "when, where, by whom, or specifically what" of the predicate offenses alleged. Jannuzzo v. Glock, Inc., F.3d (11th Cir. Jan. 4, 2018)(Unpublished).
Conviction of only some defendants.
- Trial court did not err in refusing to direct a verdict in favor of the defendants as to a RICO count after the court directed a verdict for one of defendants' codefendants who was alleged in the indictment to comprise "the enterprise", as the dismissal of the codefendant did not result in a fatal variance between the allegation and the proof. Sparkman v. State, 209 Ga. App. 763, 434 S.E.2d 564 (1993).
Reelection campaigns.
- By its express terms, the Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., includes as a crime a reelection campaign by the holder of public office in which two or more similar or interrelated predicate offenses specified in the Act are committed. Caldwell v. State, 253 Ga. 400, 321 S.E.2d 704 (1984).
Repeated sale of non-existent insurance.
- While the illegal sale of insurance is not in and of itself a basis for a racketeer influenced and corrupt organization (RICO) action absent further evidence of fraud rising to the level of theft by deception, the repeated sale to unsuspecting consumers of non-existent insurance was the very essence of such fraud and was exactly the type of criminally fraudulent activity masquerading as "business" that RICO was designed to address. Speir v. Krieger, 235 Ga. App. 392, 509 S.E.2d 684 (1998).
Nexus between predicate acts and injuries.
- Trial court erred when the court denied a motion to dismiss employees' Georgia Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., claims against the employees' former employer and a former supervisor when the allegations of the employees' complaint showed the employees could not satisfy the proximate cause element of a civil RICO claim and lacked standing to bring the allegations because there was no direct nexus between the predicate acts directed at third parties (which included fraud, forgery, and money laundering) and the employees' injuries (the loss of the employees' jobs). Wylie v. Denton, 323 Ga. App. 161, 746 S.E.2d 689 (2013).
Internet fraud.- In a RICO action based on federal and state laws, a civil judgment of over $ 16 million dollars was entered in favor of an Internet service provider against an individual who stole Internet accounts and used them in conducting the individual's spamming and spoofing activities over a two-year period. Earthlink, Inc. v. Carmack, F. Supp. 2d (N.D. Ga. May 7, 2003).
Racketeering activity supportive of conviction for participation in criminal street gang activity.
- Defendant juvenile was properly found to have committed the crime of participation in criminal street gang activity under O.C.G.A. § 16-15-4(a) because the evidence supported a finding that the defendant was part of a criminal street gang under O.C.G.A. § 16-15-3(2) (now paragraph (3)) based on the colors the defendant wore and the statement as to the removal of a gang tattoo and because the defendant committed the enumerated offenses of carrying a concealed weapon and theft by shoplifting as referenced by O.C.G.A. §§ 16-14-3 and16-15-3(1)(A), (J) and apparently stole a flare gun with the intent to further gang activity. In the Interest of C.P., 296 Ga. App. 572, 675 S.E.2d 287 (2009).
Civil forfeiture action.
- Trial court did not err in issuing interlocutory injunctions and continuing receiverships over store property seized pursuant to O.C.G.A. § 16-14-7 based on alleged video gambling activity in violation of O.C.G.A. § 16-12-22 and racketeering activity under O.C.G.A. § 16-14-3. Remand was required, however, for consideration of whether the forfeitures were excessive fines in violation of U.S. Const., amend. VIII. Patel v. State, 289 Ga. 479, 713 S.E.2d 381 (2011).
Racketeering activity not supportive of conviction for participation in criminal street gang activity.
- Defendant's conviction under the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., had to be reversed as the state did not present evidence of the necessary nexus between the defendant's drug crimes and an intent to further gang interests because, while the defendant might have intended, by distributing marijuana, to further the interests of individual gang members in obtaining small quantities of marijuana for personal use, the state did not show that the defendant meant to further the interests of the gang as an entity; and there was no evidence that the defendant's distribution of personal-use amounts of marijuana to individual gang members benefitted the gang itself through monetary profit, enhanced reputation, or other means. Randolph v. State, 334 Ga. App. 475, 780 S.E.2d 19 (2015).
Plaintiffs' claimed that the medical center charged the plaintiffs unreasonable rates for their medical care, which rates the center then used as a basis for filing hospital liens against any potential tort recovery by the plaintiffs, the plaintiffs' claims of wire and mail fraud, extortion, perjury, and false statements under Georgia's Racketeer Influenced and Corrupt Organizations Act failed as a matter of law because the filing of liens consistent with chargemaster rates did not constitute fraudulent activity. Bowden v. The Medical Center, Inc., Ga. , 845 S.E.2d 555 (2020).
OPINIONS OF THE ATTORNEY GENERAL
"Alien corporations."
- Territorial and District of Columbia corporations are organized under the laws of the United States and do not fall within the meaning of "alien corporation" as defined in former paragraph (1) of O.C.G.A. § 16-14-3. 1982 Op. Att'y Gen. No. 82-89.
RESEARCH REFERENCES
ALR.
- Validity of criminal state Racketeer Influenced and Corrupt Organizations Acts and similar acts related to gang activity and the like, 58 A.L.R. 6th 385.