(Code 1933, § 26-3403, enacted by Ga. L. 1980, p. 405, § 1; Ga. L. 1982, p. 1385, §§ 3, 9; Ga. L. 1984, p. 22, § 16; Ga. L. 2015, p. 693, § 2-25/HB 233.)
Editor's notes.- 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."
Law reviews.- For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U.L. Rev. 537 (1993). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015).
JUDICIAL DECISIONSANALYSIS
Former Code 1933, § 26-3403 (see now O.C.G.A. § 16-14-4) prohibited acquisition even of legitimate businesses with proceeds of racketeering. Western Bus. Sys. v. Slaton, 492 F. Supp. 513 (N.D. Ga. 1980).
Subsection (b) not unconstitutional.
- O.C.G.A. § 16-14-4(b) puts a person of ordinary intelligence on notice that he or she is committing a crime and is therefore 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).
When both alleged conspiracy and actual violation of O.C.G.A. § 16-14-4(b) charged same acts, committed at the same time, by the same persons, as part of the same transactions, the court subjected defendant to one conviction and one punishment. Washington v. State, 183 Ga. App. 422, 359 S.E.2d 198 (1987).
Use of predicate offenses as basis for conviction on separate offenses.
- Convictions on 75 counts of stealing public records could not stand, where state, by choosing gratuitously to include as predicates for a Racketeer Influenced and Corrupt Organization (RICO) violation all of the instances of the prohibited acts recited in the counts, "used up" the evidence, so that there was none left to form the basis for the separate offenses enumerated in the counts. Martin v. State, 189 Ga. App. 483, 376 S.E.2d 888 (1988), cert. denied, 189 Ga. App. 911, 376 S.E.2d 888 (1989).
"Enterprise" and "pattern of racketeering" may be proved by same evidence.
- State may use the same evidence to prove both the separate elements of an enterprise and a pattern of racketeering. While proof of one of the elements does not necessarily establish the other, the proof used to establish these separate elements may in particular cases coalesce. Martin v. State, 189 Ga. App. 483, 376 S.E.2d 888 (1988), cert. denied, 189 Ga. App. 911, 376 S.E.2d 888 (1989).
Recruiting services not included in definition of term of services.
- Trial court erred in denying the agency summary judgment on the recruiter's civil RICO claims because the trial court erred by concluding the term services meant the definition of personal property under the RICO Act, O.C.G.A. § 16-14-1 et seq., as recruiting services were not included within the scope of the RICO Act. Five Star Athlete Mgmt., Inc. v. Davis, 355 Ga. App. 774, 845 S.E.2d 754 (2020).
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 the 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).
Evidence not rendered inadmissible by lack of commonality for class action.
- Fact that separate claims against defendants were determined not to have sufficient commonality so as to be appropriate for class action did not render the evidence of these other transactions irrelevant or inadmissible in establishing elements of a single plaintiff's claims of fraud, unfair business practices, and Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., violations. Brown Realty Assocs. v. Thomas, 193 Ga. App. 847, 389 S.E.2d 505 (1989).
Sufficiency of complaint.
- Trial court properly ruled that the basis for treble damages under RICO had not been proved as only principal damage award supported by record was $5,960.63 amount reflected in check attached to the complaint and the complaint otherwise did not break down the award by claim. Stewart Ausband Enters. v. Holden, 349 Ga. App. 295, 826 S.E.2d 138 (2019).
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).
Predicate acts.
- Racketeer Influenced Corrupt Organizations (RICO) claim alleging only mail and wire fraud as a predicate act may be dismissed for failure to adequately allege a pattern of racketeering activity because such predicate acts were not enumerated in former § 16-14-3 paragraphs (3)(A) or (3)(B) of O.C.G.A. J.G. Williams, Inc. v. Regency Properties, Ltd., 672 F. Supp. 1436 (N.D. Ga. 1987).
When a complaint alleged that the defendant 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).
In an action against the corporate operator of a treatment program for violations of the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., evidence that by committing mail fraud, the defendant was the perpetrator and direct beneficiary of a pattern of racketeering activity and not merely a victim or passive instrumentality, would subject defendant to RICO liability. Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259, 447 S.E.2d 617 (1994).
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., evidence that the operator through a pattern of racketeering activity, i.e., mail fraud, acquired an interest in or control of money was sufficient to find liability. Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259, 447 S.E.2d 617 (1994).
Aggravated battery as a predicate act was not established where the acts alleged were not indictable under the criminal statute. Mullen v. Nezhat, 223 Ga. App. 278, 477 S.E.2d 417 (1996).
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).
Trial court erred in failing to grant defendant's demurrer to ten predicate acts of racketeering activity involving the filing of false deeds because the deed transactions were part of 14 theft by taking transactions and therefore could not form the basis of separate predicate acts. Adams v. State, 231 Ga. App. 279, 499 S.E.2d 105 (1998).
House purchasers failed to establish a pattern of racketeering activity by a lender that held a mortgage on property at the time of its sale to the purchasers, even though the lender had the first mortgage on over 100 properties owned by the seller. Ali v. Fleet Fin., Inc., 232 Ga. App. 13, 500 S.E.2d 914 (1998).
Claim of theft by deception as a predicate act failed where provisions of a contract affirmed by plaintiffs foreclosed such claim and an unrealized diminution in the value of property purchased by plaintiffs did not equate to the defendant obtaining the property as plaintiffs were still the owners. Markowitz v. Wieland, 243 Ga. App. 151, 532 S.E.2d 705 (2000).
When an alleged predicate act is mail fraud, the plaintiff must have been the target of the scheme to defraud and must have relied to plaintiff's detriment on misrepresentations made in furtherance of that scheme. Markowitz v. Wieland, 243 Ga. App. 151, 532 S.E.2d 705 (2000).
Crime of influencing witnesses as a predicate act was not established by a claim that the witness was threatened with a lawsuit and changed the witness's testimony as a result because the threat of a lawsuit does not amount to conduct prohibited by O.C.G.A. § 16-10-93. Markowitz v. Wieland, 243 Ga. App. 151, 532 S.E.2d 705 (2000).
District court properly granted summary judgment under Fed. R. Civ. P. 56 in favor of a Georgia golf cart manufacturer on a Canadian golf cart distributor's claim under the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., specifically O.C.G.A. § 16-14-4(a), since the distributor did not offer any proof of specific intent to defraud with respect to mail fraud, 18 U.S.C. § 1341, in the manufacturer's collection and payment of the debt. Quebec Provincial Sales Tax. Club Car, Inc. v. Club Car (Quebec) Imp., Inc., 362 F.3d 775 (11th Cir.), cert. denied, 543 U.S. 1002, 125 S. Ct. 618, 160 L. Ed. 2d 461 (2004).
In a prosecution of defendant, a sheriff, for murder and violations of Georgia Racketeering Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., even if the trial court erred in not quashing theft allegations as predicate RICO acts, the other predicate offenses, including bribery, solicitation of murder, murder, and witness tampering supported the RICO convictions. Dorsey v. State, 279 Ga. 534, 615 S.E.2d 512 (2005).
Class action suit by legal workers of a Georgia rug manufacturer adequately stated a state law RICO claim under O.C.G.A. § 16-14-4(a) because, under 18 U.S.C. § 1961(1)(F), the term "racketeering activity" included the manufacturer's widespread pattern of fraud under 18 U.S.C. § 1546, i.e., the misuse of visas, permits, and other documents to hire illegal aliens in order to depress the hourly wages of the manufacturer's workers. Williams v. Mohawk Indus., 465 F.3d 1277 (11th Cir. 2006), cert. denied, mot. denied, 549 U.S. 1260, 127 S. Ct. 1381, 167 L. Ed. 2d 174 (2007).
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).
There was no showing of racketeering by a creditor since the creditor's misinterpretation of bankruptcy law which indicated that a debt was no longer owed did not establish the specific intent to commit the alleged predicate acts of racketeering. Goodwyn v. Capital One, N.A., 127 F. Supp. 3d 1367 (M.D. Ga. 2015).
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).
Transaction occurring after action filed.
- In a Racketeer Influenced and Corrupt Organizations action, the mere fact that at least one of the transactions occurred subsequent to the filing of plaintiff's suit, evidence of it was not barred merely because it was later in time, where the incident on trial would constitute one of the acts upon which the cause of action is predicated. Interagency, Inc. v. Danco Fin. Corp., 203 Ga. App. 418, 417 S.E.2d 46 (1992).
Violation of O.C.G.A. § 16-10-20, prohibiting the making of false statements, constitutes "racketeering activity" for purposes of a Racketeer Influenced and Corrupt Organizations (RICO), O.C.G.A. § 16-14-1 et seq., claim. Maddox v. Southern Eng'g Co., 216 Ga. App. 6, 453 S.E.2d 70 (1994).
Nexus with organized crime is not necessary to prevail on a Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., claim. Dee v. Sweet, 218 Ga. App. 18, 460 S.E.2d 110 (1995).
Proof of "enterprise" not required.
- Violation of O.C.G.A. § 16-14-4(a) does not require proof of an "enterprise," but only that the accused acquired any real or personal property, including money, through a pattern of racketeering activity. Cobb County v. Jones Group, 218 Ga. App. 149, 460 S.E.2d 516 (1995).
Commonality satisfied.- In RICO cases, an alleged scheme to defraud which affects a class of people is a common question of law and/or fact, regardless of the characteristics of the scheme's intended victims. Buford v. H & R Block, Inc., 168 F.R.D. 340 (S.D.Ga. 1996), aff'd sub nom. Jones v. H & R Block Tax Servs., 117 F.3d 1433 (11th Cir. 1997).
Because plaintiff employees alleged defendant employer engaged in fraud and misuse of visas under 18 U.S.C. § 1546, as a predicate offense under O.C.G.A. § 16-14-3, commonality under former paragraph (9) of Fed. R. Civ. P. 23(a)(2) was satisfied as to the state racketeering claims under O.C.G.A. § 16-14-4 and under 18 U.S.C. § 1692 of the federal Racketeer Influence and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq. Williams v. Mohawk Indus., 568 F.3d 1350 (11th Cir. 2009).
Conspiracy is not an essential element of a RICO claim brought under O.C.G.A. § 16-14-4(a) or (b) and may not be an essential element of subsection (c), depending upon the allegations. Patterson v. Proctor, 237 Ga. App. 244, 514 S.E.2d 37 (1999).
Telecommunication providers.
- In an action in which an interexchange carrier asserted it was not obligated to pay fees to a local carrier for misrepresented toll-free cell calls, it's amendment to add claims alleging violations under the Georgia RICO Act, O.C.G.A. § 16-14-1 et seq., common law fraud, and the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., was not futile given the court's denial of summary judgment on the local carrier's counterclaims; amendment under Fed. R. Civ. P. 15 was granted. ITC Deltacom Communs. v. US LEC Corp., F. Supp. 2d (N.D. Ga. Mar. 15, 2004).
Lesser included offense charge not warranted.
- 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 former paragraph (8)(a) of 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).
Statute of limitations five years.
- Trial court did not err by dismissing an indictment charging the defendants with racketeering violations and conspiracy as the state failed to prove that an overt act in furtherance of the conspiracy occurred less than five years from the date of the indictment. State v. Conzo, 293 Ga. App. 72, 666 S.E.2d 404 (2008).
Defendant's convictions for theft by conversion and a RICO violation were reversed because the state failed to carry the state's burden to prove that the defendant was indicted on the counts within the applicable statutes of limitation as the evidence showed that the victims, and therefore the state, had actual knowledge of the offenses more than five years prior to the June 12, 2009 indictment, and the state produced no evidence or argument to the contrary. Jannuzzo v. State, 322 Ga. App. 760, 746 S.E.2d 238 (2013).
Resitution proper following theft of investors' money.
- Following the defendant's guilty plea to O.C.G.A. § 16-14-4(a) (RICO), an order of $725,000 restitution pursuant to O.C.G.A. § 17-14-3(a) was supported by evidence that the defendant had the capacity for gainful employment, notwithstanding the defendant's claim that the defendant was disabled; that the defendant had possessed hundreds of thousands of dollars of the victims' money; and that the defendant had a venture in which the defendant claimed $4.8 million. Nelson v. State, 329 Ga. App. 300, 764 S.E.2d 883 (2014).
Sentence in violation of plea agreement.
- Following the state agreeing to dismiss the RICO and theft charges against the defendant in exchange for a guilty plea to one misdemeanor count of hindering and obstructing a law enforcement officer conditioned upon the defendant testifying truthfully at the trial against the co-defendants, the trial court erred by imposing a sentence upon the defendant which differed from the understood terms of the negotiated plea. Lewis v. State, 330 Ga. App. 412, 767 S.E.2d 771 (2014).
Cited in Morast v. Lance, 631 F. Supp. 474 (N.D. Ga. 1986); Brown v. State, 191 Ga. App. 76, 381 S.E.2d 101 (1989); Pepsico Truck Rental, Inc. v. Eastern Foods, Inc., 145 Ga. App. 410, 243 S.E.2d 662 (1978); Cobb v. Kennon Realty Servs., Inc., 191 Ga. App. 740, 382 S.E.2d 697 (1989); Brown v. Freedman, 222 Ga. App. 213, 474 S.E.2d 73 (1996); Rohm & Haas Co. v. Gainesville Paint & Supply Co., 225 Ga. App. 441, 483 S.E.2d 888 (1997); Tom's Amusement Co. v. Total Vending Servs., 243 Ga. App. 294, 533 S.E.2d 413 (2000); JLM Enters. v. Houston Gen. Ins. Co., 196 F. Supp. 2d 1299 (S.D. Ga. 2002); Liberty Lending Servs. v. Canada, 293 Ga. App. 731, 668 S.E.2d 3 (2008); Cisco v. State, 285 Ga. 656, 680 S.E.2d 831 (2009); Hill v. State, 315 Ga. App. 833, 729 S.E.2d 1 (2012); Cox v. Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 734 S.E.2d 883 (2012); Kimbrough v. State, 300 Ga. 878, 799 S.E.2d 229 (2017).
Application
1. In General
Telemarketing practices.
- Court properly denied the defendants' motion for summary judgment in a bank's state RICO action because a genuine issue of fact remained as to the defendants' participation in a pattern of racketeering activity sufficient to ground liability under O.C.G.A. § 16-14-4(a); the jury could reasonably find that the defendants' scheme was to obtain fraudulent charges from customers, to defraud the bank into approving the charges in the first instance, to forestall the collapse of the scheme by never contesting chargebacks and by concealing their volume for as long as possible, and to use the time thus gained to transform their telemarketing entity's grosses into personal assets. Faillace v. Columbus Bank & Trust Co., 269 Ga. App. 866, 605 S.E.2d 450 (2004).
Failure to strike offenses held harmless error.
- Failure to strike from a Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., indictment, as predicate offenses, three thefts which had been formerly prosecuted was harmless error, where there was no reason to infer that defendant's guilty pleas to other offenses were tainted or otherwise affected by the superfluous addition of predicate offenses which had formerly been prosecuted. Bethune v. State, 198 Ga. App. 490, 402 S.E.2d 276, cert. denied, 198 Ga. App. 897, 402 S.E.2d 276 (1991).
"Salting" coin boxes.
- When laundromat purchasers alleged the vendor added money to washer and dryer coin boxes in order to persuade the purchasers to purchase the business, the alleged addition or "salting" of coins did not constitute a "pattern of racketeering activity" within the meaning of O.C.G.A. § 16-14-4. Waldschmidt v. Crosa, 177 Ga. App. 707, 340 S.E.2d 664 (1986).
Falsely accusing customers of shoplifting, even if it constituted a pattern of criminal activity, was not conduct intended to derive pecuniary gain as required by O.C.G.A. § 16-14-4. Sevcech v. Ingles Mkts., Inc., 222 Ga. App. 221, 474 S.E.2d 4 (1996).
Defendant's indictment and sentence in a prior case were admissible, where such evidence, when combined with other evidence introduced at trial, showed the requisite pattern of racketeering activity. Brown v. State, 191 Ga. App. 76, 381 S.E.2d 101, cert. denied, 191 Ga. App. 921, 381 S.E.2d 101 (1989).
Use of prior guilty pleas to prove pattern of illegal activities.
- Trial court did not err in admitting into evidence two indictments from the superior court in another county, in which the defendant had been similarly charged with identity fraud, financial- transaction-card fraud, and exploitation of an elder person, relating to some of the elderly victims the defendant had targeted in that county, and the defendant's guilty pleas to those offenses given that the state was required to prove a series or pattern of illegal activities for a conviction under the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq. Roberts v. State, 344 Ga. App. 324, 810 S.E.2d 169 (2018).
Indictment sufficiently specific.
- Indictment for criminal racketeering alleged the offense with sufficient specificity when the indictment set forth specific timber transactions involving specific persons, places, acreages, deals, and owners. Grant v. State, 227 Ga. App. 88, 488 S.E.2d 79 (1997); Adams v. State, 231 Ga. App. 279, 499 S.E.2d 105 (1998).
Indictment charging a conspiracy to violate Georgia's Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., was sufficient because there was no requirement that the state prove that a defendant personally committed the underlying predicate offenses personally. Pasha v. State, 273 Ga. App. 788, 616 S.E.2d 135 (2005).
Allegation of predicate offenses sufficient.- Allegations against mortgage loan servicer were sufficient to state a claim of theft by taking, deception, and conversion because despite being told that the mortgage loan was fraudulent the servicer kept the borrowers' money and continuously threatened the borrowers with foreclosure; however, the complaint failed to state a violation of mail and wire fraud as the borrowers did not identify any specific deceptive content in the communications made by the servicer, nor how such content misled the borrowers. Kerfoot v. FNF Servicing, Inc., F. Supp. 2d (M.D. Ga. Oct. 25, 2013).
Indictment not sufficiently specific.
- Indictment charging the defendants with violating the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, O.C.G.A. § 16-14-1 et seq., did not give the defendants enough information about the RICO charge to prepare their defense intelligently because the sparse allegations in the indictment, which said nothing about the nature of the connection between the enterprise and the pattern of racketeering activity, were insufficient to enable the defendants to prepare for trial; and the nature of that connection was not apparent from the identification of the enterprise, the general description of the racketeering activity in Count 1, or the subsequent counts charging more particularly the predicate acts of racketeering. Kimbrough v. State, 300 Ga. 878, 799 S.E.2d 229 (2017).
Evidence sufficient for conviction.
- See Brown v. State, 191 Ga. App. 76, 381 S.E.2d 101, cert. denied, 191 Ga. App. 921, 381 S.E.2d 101 (1989); Thompson v. State, 211 Ga. App. 887, 440 S.E.2d 670 (1994).
Evidence showing that cocaine chronically used by defendant was taken from shipments of cocaine imported by defendant and others into the state was sufficient to sustain defendant's conviction, where such evidence established a connection between the cocaine possession offense and the alleged "enterprise." 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).
Trial court's failure to suppress jewelry in prosecution under O.C.G.A. § 16-14-4 was harmless error, as there was sufficient evidence to convict the defendant absent the jewelry; the state introduced voluminous documentary evidence, supported by testimony from coworkers and bank employees, concerning the forgery scheme. Henry v. State, 277 Ga. App. 302, 626 S.E.2d 511 (2006).
Defendants' RICO convictions under O.C.G.A. § 16-14-4 were upheld on appeal, as: (1) both the defendants were placed on sufficient notice regarding the conspiracy nature of the charges; (2) jury instructions and the trial court's recharge on the issues of conspiracy and knowledge were properly given; and (3) neither defendant preserved error as to an alleged violation of O.C.G.A. § 17-8-57 by either raising a contemporaneous objection or moving for a mistrial based on the trial court's alleged improper comments. Graham v. State, 282 Ga. App. 576, 639 S.E.2d 384 (2006).
There was sufficient evidence to support a defendant's conviction under the Georgia Racketeering Influenced and Corrupt Organization Act, O.C.G.A. § 16-4-1 et seq., as contrary to the defendant's contention that the crimes were isolated incidents, the acts involving the abduction and murder of a store manager and various thefts and interrelated crimes set forth at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise were interrelated by distinguishing characteristics and were not isolated incidents. 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 defendant and other members of the group) and the evidence also established that those were not isolated incidents, but a continuing pattern of criminal activity. Overton v. State, 295 Ga. App. 223, 671 S.E.2d 507 (2008), cert. denied, No. S09C0654, 2009 Ga. LEXIS 212 (Ga. 2009).
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).
Trial court did not err in denying the defendant's motion for a new trial on the basis that the evidence was insufficient to support the conviction under Georgia's Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., as the defendant's contention that the amount of money used for the defendant's benefit was small did not render the evidence insufficient and, as a co-conspirator, the racketeering activity underlying the defendant's conviction included that of the defendant's co-conspirator. Whaley v. State, 343 Ga. App. 701, 808 S.E.2d 88 (2017).
Since the defendant's conviction for violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, O.C.G.A. § 16-14-1 et seq., was predicated on the defendant's commission of theft by receiving and, because the evidence was sufficient to sustain the convictions for those predicate acts, the evidence was also sufficient to sustain the RICO conviction. Akintoye v. State, 340 Ga. App. 777, 798 S.E.2d 720 (2017).
Evidence was sufficient to convict the defendant of identity fraud, financial-transaction-card fraud, and exploitation of an elder person and the defendant's convictions for those predicate acts was sufficient to convict the defendant of violating the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., because the defendant participated in a scheme, in which the defendant and the defendant's cohorts obtained elderly victims' credit card, banking, and other financial and personal information by telephoning the victims and informing the victims that the victims' power would be cut off if the victims did not immediately provide such information; and the defendant used the cards or the account numbers to make purchases and to obtain cash advances. Roberts v. State, 344 Ga. App. 324, 810 S.E.2d 169 (2018).
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).
Evidence insufficient for conviction.
- Single RICO count conviction required reversal since though evidence was presented that the defendant, a county school superintendent, knew or should have known that the source of funds was improper or illegal, no evidence was presented that before the superintendent's assistants confessed to theft of funds, the defendant had knowledge that the source of the funds was theft as opposed to some other source such as illegal kickbacks or contributions from third parties. Purvis v. State, 208 Ga. App. 653, 433 S.E.2d 58 (1993).
Evidence of pattern of racketeering activity sufficient to withstand summary judgment.
- In an action alleging that the defendants cut and removed timber from the plaintiffs' property without their consent, the defendants were not entitled to summary judgment on the basis that the plaintiffs failed to show that the defendants engaged in a pattern of racketeering activity where the plaintiffs alleged that the defendants cut and removed timber from two other properties without the owners' consent. Patterson v. Proctor, 237 Ga. App. 244, 514 S.E.2d 37 (1999).
Defendant's knowledge of all aspects of the enterprise not required in RICO action.
- In a RICO case, the state was not required to show that each defendant in the enterprise had full knowledge of all facets and elements of the enterprise and all its members or actors; the trial court did not err in charging the jury on deliberate ignorance, when one defendant's suspicions of the scheme to acquire unoccupied homes by living in the homes and claiming adverse possession. Lowery v. State, 347 Ga. App. 26, 815 S.E.2d 625 (2018).
Evidence insufficient to establish pattern of proscribed activity.
- Evidence showing merely two joint victims of one isolated transaction was not sufficient to establish a pattern of proscribed activity. Emrich v. Winsor, 198 Ga. App. 333, 401 S.E.2d 76 (1991).
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).
In a case in which a property owner did not focus on the substantive claim under the Racketeering Influence and Corrupt Organization Act (RICO) and O.C.G.A. § 16-14-4 as decided by the district court, but rather challenged an earlier district court order indicating that the property owner did not have standing to allege RICO violations with respect to any conduct during the original state civil action, as the property owner was not a party to that action, the district court's entry of summary judgment against the property owner on the RICO claims was affirmed. The property owner's argument did not go beyond mere accusations unsupported by evidence, and the property owner pointed to no evidence that an enterprise existed for the purposes of RICO. Sun v. Girardot, F.3d (11th Cir. 2007)(Unpublished).
Plaintiff failed to state claim for which relief could be granted based on fraud or violations of Georgia's Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., because the plaintiff's allegations of fraud were limited to broad allegations that the plaintiff was fraudulently induced into a mortgage and that papers were fabricated, without specific information about the specific substance of the fraudulent activity, and the plaintiff failed to allege with particularity the necessary pattern of illegal activity necessary for a Georgia RICO claim. Ghee v. J.P. Morgan Chase Bank, F.3d (11th Cir. Jan. 16, 2019).
Connection between injury and predicate acts required in civil action.
- When the evidence did not show that the defendant's misrepresentations in violation of O.C.G.A. § 16-10-20, prohibiting the making of false statements, were the proximate cause of the plaintiff's injuries, the plaintiff lacked standing to assert claims under the Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq. Maddox v. Southern Eng'g Co., 231 Ga. App. 802, 500 S.E.2d 591 (1998).
Shareholder of a corporation lacked standing to assert that allegedly fraudulent transfers of intellectual property constituted racketeering since the property belonged to the corporation and the shareholder had no actionable interest in the property distinguishable from the interest of the corporation. Harris v. Orange S.A., F.3d (11th Cir. 2015)(Unpublished).
Civil remedy for violation of RICO.
- LLC ("debtor") that declared Chapter 11 bankruptcy was awarded default judgment on the debtor's claims alleging that the debtor could recover damages from another LLC because the other LLC's members violated the Georgia Racketeer Influenced and Corrupt Organizations Act ("RICO"), O.C.G.A. § 16-14-1, specifically O.C.G.A. § 16-14-4, when those members engaged in a scheme to wrongfully acquire property that belonged to the debtor; however, the debtor was denied default judgment on the debtor's claims that the debtor had a right to recover damages from the other LLC under Georgia RICO because its members violated those statutes when the members brought stolen property into Georgia and committed bank fraud because there was no evidence that the LLC's members brought stolen property into Georgia or committed bank fraud. Citrus Tower Blvd. Imaging Ctr., LLC v. Trell (In re Citrus Tower Blvd. Imaging Ctr., LLC), 525 Bankr. 816 (Bankr. N.D. Ga. 2015).
Creditor's federal and state (Georgia) RICO conspiracy claims against the debtor failed as there were no allegations of the existence of an illicit agreement between the debtor and others to violate RICO. Vanbenschoten v. Turner (In re Turner), Bankr. (Bankr. S.D. Ga. Mar. 31, 2017).
Creditor's federal and state (Georgia) RICO claims were dismissed since the complaint did not allege that the debtor took or exercised control of an enterprise through racketeering activity and did not allege any injury from the debtor's acquisition or control of an interest in a RICO enterprise. Rather, the only injuries alleged were those that resulted from the predicate acts themselves. Vanbenschoten v. Turner (In re Turner), Bankr. (Bankr. S.D. Ga. Mar. 31, 2017).
Creditor's federal and state (Georgia) RICO conspiracy claims against the debtor failed as there were no allegations of the existence of an illicit agreement between the debtor and others to violate RICO. Harlander v. Turner (In re Turner), Bankr. (Bankr. S.D. Ga. Mar. 31, 2017).
Survival of tort action following death.
- In a case in which the intended beneficiaries of two life insurance policies alleged violations of Georgia's Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-4-1 et seq., the representative of the decedent's estate may be able to recover in a representative capacity for acts directed toward, or harm incurred by, the decedent. Under O.C.G.A. § 9-2-41, a tort action did not abate by the death of the injured party, but survived to the personal representative of the decedent. Am. Gen. Life & Accident Ins. Co. v. Ward, 509 F. Supp. 2d 1324 (N.D. Ga. Mar. 12, 2007).
Scheme to defraud entrepreneurs.- On claims by plaintiff buyers of distributorships against defendants, the seller and the seller's principal and relatives and other corporate entities, the Racketeering Influenced and Corrupt Organizations Act's reliance element did not destroy predominance for Fed. R. Civ. P. 23(b)(3), and, the allegations were that defendants undertook a single scheme to defraud would-be entrepreneurs. Brenner v. Future Graphics, LLC, 258 F.R.D. 561 (N.D. Ga. 2007).
Theft by deception and residential mortgage fraud predicate acts.
- Trial court erred in dismissing a mortgagor's RICO claim because the complaint alleged that the mortgagor was injured by at least two predicate acts (theft by deception and residential mortgage fraud) which could constitute a pattern of racketeering activity and the mortgagee did not show that the mortgagor could not possibly introduce evidence within the framework of the complaint sufficient to grant relief on the RICO claim. Mbigi v. Wells Fargo Home Mortg., 336 Ga. App. 316, 785 S.E.2d 8 (2016).
Chicken growers.
- Chicken grower's O.C.G.A. § 16-14-4 claim failed because the grower produced no evidence specific to that claim, and the grower failed to create a genuine issue of material fact for the same reasons the grower failed to create an issue in the grower's fraud claims (the grower could not produce evidence that the chicken processing company underpaid the grower for the grower's flocks). Mims v. Cagle Foods JV, LLC, F.3d (11th Cir. 2005)(Unpublished).
Fraudulent borrowing scheme from parishioners.
- Indictment, which described a scheme of fraudulent borrowing from the parishioners of one defendant, a pastor, to benefit the pastor and the other defendant, a banker, sufficiently described the RICO crimes and predicate acts under O.C.G.A. § 16-14-4(a) and (c) so as to inform the defendants of the charges against the defendants and protect the defendants against another prosecution for the same offense. State v. Pittman, 302 Ga. App. 531, 690 S.E.2d 661 (2010).
2. Companies and Employees
Offenses committed by agents or employees of corporation.
- In an action against the corporate operator of a treatment program for violations of the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., since there was evidence that agents or employees of the operator committed predicate offenses alleged in the pleadings, and there were material issues of fact as to whether the operator was a party to or involved in commission of the offenses, the RICO enterprise could consist of the corporation and its agents or employees with respect to such offenses. Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259, 447 S.E.2d 617 (1994).
Corporation could be held liable in a civil action for RICO predicate acts performed by the corporation's employees within the scope of their employment. Cobb County v. Jones Group, 218 Ga. App. 149, 460 S.E.2d 516 (1995).
Corporation's liability for activities prior to incorporation.
- Corporation could be held responsible for racketeering activity completed prior to incorporation when the activity provided benefits to the corporation. Cobb County v. Jones Group, 218 Ga. App. 149, 460 S.E.2d 516 (1995).
Claims against employer in connection with hiring illegal aliens.
- On remand from the U.S. Supreme Court, a class action suit filed by legal employees of a Georgia rug manufacturer, alleging state RICO violations based on the widespread hiring of illegal aliens in order to depress the hourly wages of the manufacturer's workers, survived a motion to dismiss for failure to state a claim; the federal appellate court deferred to the Supreme Court of Georgia's holding that O.C.G.A. § 16-14-4, when read in conjunction with O.C.G.A. §§ 1-3-3(14) and16-1-3(12) provided that "any person" could be sued under the Georgia RICO statute, including corporations such as the rug manufacturer. Williams v. Mohawk Indus., 465 F.3d 1277 (11th Cir. 2006), cert. denied, mot. denied, 549 U.S. 1260, 127 S. Ct. 1381, 167 L. Ed. 2d 174 (2007).
Law firms.
- Racketeering claim against a law firm failed when there was no evidence to support proximate causation. Smith v. Morris, Manning & Martin, LLP, 293 Ga. App. 153, 666 S.E.2d 683 (2008).
Civil complaint against company failed to state RICO violation.
- Plaintiffs, residents, sued the defendants, a chemical plant and a laboratory, alleging the plaintiffs were injured due to chemical fires at the laboratory's facility. As the complaint failed to allege a pattern of two or more of the 37 predicate acts listed in Georgia's Racketeer Influenced and Corrupt Organization (RICO) statute, O.C.G.A. § 16-4-1 et seq., the defendants were properly granted summary judgment on the RICO claim. Smith v. Chemtura Corp., 297 Ga. App. 287, 676 S.E.2d 756 (2009).
Action against transferee of franchisee failed.
- Trial court erred by failing to grant a succeeding franchisee's motion for summary judgment in a fraud suit brought by car dealership consumers as the consumers failed to establish the succeeding franchisee's participation or involvement in any of the complained of transactions; thus, no unfair business violations were established, and no direct claim against a transferee was permitted under the Bulk Transfer Act, O.C.G.A. § 11-6-101 et seq. Additionally, the consumers' claims under Georgia's Racketeer Influenced and Corrupt Organizations statute, O.C.G.A. § 16-14-1 et seq., likewise failed since the uncontroverted evidence established without question that the succeeding franchisee did not make any misrepresentations to the consumers nor participated in any of the transactions that formed the basis of the consumers' claims. Summit Auto. Group, LLC v. Clark Kia Motors Ame., Inc., 298 Ga. App. 875, 681 S.E.2d 681 (2009).
Cause of action stated.
- Corporate officer stated a cause of action for a violation of O.C.G.A. § 16-14-4 in an action arising from the officer's discharge when the officer alleged (1) the obstruction of justice by the defendants, (2) a pattern consisting of the officer being placed on administrative leave, the termination of the officer's employment, and the similar and interrelated termination of another person, and (3) that the defendants acted to deter the plaintiff and the other person from freely giving truthful testimony before a court or to injure them because they did so testify. O'Neal v. Garrison, 263 F.3d 1317 (11th Cir. 2001).
Class action complaint by carpet manufacturing workers adequately pleaded civil federal and Georgia RICO violations based on employer's widespread practice of hiring, harboring, encouraging, and inducing illegal aliens in violation of 8 U.S.C. § 1324 of the Immigration and Nationality Act, causing reductions in the manufacturer's legal workers' hourly wages; by paying recruiters to find illegal workers and bring the illegal workers to Georgia, the employer engaged in a prohibited "enterprise" under 18 U.S.C. § 1962(c). Williams v. Mohawk Indus., 465 F.3d 1277 (11th Cir. 2006), cert. denied, mot. denied, 549 U.S. 1260, 127 S. Ct. 1381, 167 L. Ed. 2d 174 (2007).
Purchaser under an agricultural sales contract sufficiently showed that the seller violated federal and state racketeering laws since the purchaser established on deemed admitted facts that the seller obtained money from unsuspecting victims, including the purchaser, for agricultural products that were not delivered and were never intended to be delivered. Functional Prods. Trading, S.A. v. JITC, LLC, F. Supp. 2d (N.D. Ga. July 29, 2014).
Purchaser under an agricultural sales contract sufficiently showed that a limited liability company (LLC) and its members conspired to violate state racketeering laws since the LLC and members were shown to have knowingly and willfully acted in concert and joined in a racketeering conspiracy to obtain money from unsuspecting victims for agricultural products that were not delivered and were never intended to be delivered. Functional Prods. Trading, S.A. v. JITC, LLC, F. Supp. 2d (N.D. Ga. July 29, 2014).
Nexus between predicate acts and employees' 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).
Employee falsifying overtime.
- Evidence that the defendant conspired with other employees to falsify overtime records in exchange for payment by the employees, including both direct evidence of the defendant's unlawful acts, corroborated by non-accomplice witnesses, as well as a recording of the defendant's own incriminating statement, was sufficient to support the defendant's conviction for violating the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., specifically O.C.G.A. § 16-14-4(a). Brown v. State, 321 Ga. App. 198, 739 S.E.2d 118 (2013).
3. Lending Institutions
Loan practices.
- Because loan practices of charging discount points and other interest charges during the first month of a loan were legal, the plaintiffs' Georgia Racketeer Influenced and Corrupt Organizations (RICO), O.C.G.A. § 16-14-1 et seq., specifically O.C.G.A. § 16-14-4, claims failed. Johnson v. Fleet Fin., Inc., 785 F. Supp. 1003 (S.D. Ga. 1992), aff'd, 4 F.3d 946 (11th Cir. 1993).
Racketeering by a loan servicer and a note holder was sufficiently shown since notices were mailed to a bankruptcy debtor misrepresenting an ability to foreclose against the debtor's property after the foreclosure occurred, and statements were mailed showing a balance due which was not reduced by the proceeds of the foreclosure. Gordon v. Bank of Am., N.A. (In re Merriweather), Bankr. (Bankr. N.D. Ga. Aug. 28, 2015).
Misrepresentations by loan servicer.- Although a loan servicer filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the borrowers alleged sufficient facts to satisfy the causation requirement; as a result of relying on the servicer's misrepresentations, the borrowers suffered the injuries complained of, which were the loss of the borrowers' home as well as physical, emotional, and financial hardship. Quasebarth v. Green Tree Servicing, LLC, F. Supp. 2d (M.D. Ga. Mar. 3, 2015).
Usurious interest rate.
- Trial court properly granted summary judgment to the defendant regarding the plaintiff's claim that the defendant violated the RICO Act by knowingly employing a scheme to charge usurious interest since the evidence showed that the inappropriate interest charges made by the defendant were the result of a programming error in software and that such programming error was not requested by the defendant, and the defendant had no prior knowledge of the problem. Jordan v. Tri County Ag, Inc., 248 Ga. App. 661, 546 S.E.2d 528 (2001).
4. Insurance
Insurance policy.
- Defendant insurers were entitled to summary judgment because plaintiff insured's affirmance of a disability income policy with a merger clause precluded any reliance on the alleged pre-contractual misrepresentations and barred the claims for fraud and for violations of O.C.G.A. § 16-14-4(a)-(c), and because the insured alleged no facts to show that the insurers had a duty independent of their contract duties to state a claim for tortious interference with property rights. Worsham v. Provident Cos., 249 F. Supp. 2d 1325 (N.D. Ga. 2002).
Illegal sale of insurance is not in and of itself a basis for a civil RICO action, but it may serve as such if it was conducted in violation of federal mail and wire fraud statutes or if it was proven to have been a fraud amounting to theft. Olukoya v. American Ass'n of Cab Cos., 219 Ga. App. 508, 465 S.E.2d 715 (1995).
Recovery not available.
- Even if an insurance company engaged in a mail and wire fraud scheme to avoid compliance with state laws and illegally sell insurance without properly appointing agents, an insured could not recover in a civil action under the Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., without showing a connection between an insured's injury and the predicate acts. 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).
Evidence insufficient for conspiracy by insurance company.
- Financial planner's cause of action against the insurance company for conspiracy to commit violations of the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., specifically O.C.G.A. § 16-14-4(c), was dismissed because: (1) the planner's allegations were insufficient to allege that the insurance company knowingly and willfully joined a conspiracy which intended to commit two predicate acts in furtherance of a common, unlawful scheme; (2) the insurance company could not have knowingly and willfully conspired to steal the planner's chose of action because the company was not even aware of the terms of the settlement agreement; and (3) the planner failed to allege particular facts which demonstrated that the insurance company knowingly and willfully conspired with the parent company and the subsidiary to commit mail fraud in order to steal from the planner. Rosen v. Protective Life Ins. Co., F. Supp. 2d (N.D. Ga. May 20, 2010).
RESEARCH REFERENCESAppeal of a Federal Mail Fraud Conviction, 42 Am. Jur. Trials 1.
ALR.- Validity, construction, and application of state computer crime and fraud laws, 87 ALR6th 1.
Offense of Committing Murder In Aid of Racketeering (VICAR) in Drug Enterprise under 18 U.S.C.A. § 1959, 47 A.L.R. Fed. 3d Art. 5.