GEORGIA RICO CHARGES

What are RICO charges in Georgia? “RICO” means “Racketeer Influenced and Corrupt Organizations.” Under the Georgia RICO law, it is a crime for any person through a pattern of racketeering activity to acquire or maintain any interest in or control of any type of property or business.

A person may be charged with RICO (O.C.G.A. § 16-14-4) if they participate in an interrelated pattern of criminal activity motivated by or resulting in monetary gain or economic or physical threat or injury.

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RICO is a somewhat complicated statute. To prove the crime of RICO, there are very specific elements with their own specific definitions. The state must also prove separate underlying offenses beyond a reasonable doubt in addition to proving RICO. Specifically, the state must prove:

• the defendant committed two of more predicate crimes (which are listed in C.G.A. § 16-14-3);
• that the predicate acts were committed as part of an enterprise engaging in a pattern of racketeering activity; and
• that either:
  1. one or more of the acts that form the pattern resulted in the defendant acquiring or maintaining control of any enterprise, real property, or personal property (including money), or
  2. the defendant was employed by or associated with an enterprise through a pattern of racketeering.

O.C.G.A. § 16-14-3 defines and explains what these terms mean. An “enterprise” is defined as a person or business recognized under state law or some other legal entity (such as a partnership, corporation, union, etc.); or a group or association which is not a legally recognized entity but associate and identify as a group with a common purpose or goal. An enterprise can be legitimate or illegal and can also include governmental entities.

“Racketeering activity” means to commit, attempt, or solicit another person to commit a specific crime listed in the statute, which includes over 40 different types of offenses. Examples of included offenses, often referred to as “predicate acts” or “predicate offenses,” are homicide, theft, fraud, perjury, commercial bribery, drug distribution, drug trafficking and dozens more. The state is required to prove at least two of these offenses beyond a reasonable doubt. The offenses do not have to be charged separately in the indictment. So long as they are listed in the indictment and proved to be a predict act, which is one of the elements to prove the RICO charge itself, that is sufficient. Furthermore, the state does not have to prove every single predicate act beyond a reasonable doubt. Proving at least two acts is all that’s required.

A “pattern of racketeering activity” means engaging in at least two incidents of racketeering activity to accomplish at least one scheme or plan that have the same or similar intents, results, accomplices, victims, or methods of committing crime(s) or are otherwise connected by distinguishing characteristics and are not isolated incidents. For example, a group of individuals decide they need money fast by whatever means necessary and agree to split the profits. One steals debit cards and withdraws money from ATMs, another forges checks, and another robs supermarkets. While these are different crimes requiring separate elements of proof, they are interrelated for RICO purposes because they were all done to achieve a single goal: gaining money. If one of the individuals robbed a bank 10 years ago, got away with it, and then forged checks as part of the group’s scheme, the bank robbery likely wouldn’t be considered a predicate act because it was an isolated incident by a single individual and had no connection to the group’s plan and goal.

Predicate crimes that fall under this Act (and may be used to show a “pattern” of unlawful conduct) include the following: drug offenses, homicide, bodily injury, arson, burglary, forgery, theft, robbery, prostitution and pandering, distributing obscene materials, bribery, influencing witnesses, tampering with witnesses or victims, intimidation of a juror or court officer, perjury, tampering with evidence, commercial gambling, certain firearm offenses, illegally reproducing copyrighted material, various securities violations, certain credit card crimes, certain crimes involving titles, destroying or misrepresenting identification numbers, possessing automobile parts with missing identification features, various computer crimes, kidnapping, false imprisonment, terroristic threats, motor vehicle and aircraft hijacking, insurance fraud, usurious payday loans, deceptive commercial e-mail, and residential mortgage fraud.

A conviction under Georgia’s RICO statute will result in a 5- to 20-year sentence, a fine, or both. A judge may fine a defendant up to three times the amount of any money obtained by the defendant during the scheme.

Georgia also possesses the power to impose civil remedies. A judge may order a defendant to give up any business interest or property gained through a RICO violation. Defendants may also have other restrictions levied upon them, such as a prohibition from engaging in the same type of endeavor as the unlawful business.

Injured parties may file suit against defendants for three times the actual damages sustained, and may seek punitive damages when appropriate.

An example of how this plays out in the real world is helpful to better explain RICO. Assume that John had financial power of attorney over a very wealthy widow’s estate. Over a four year period, John took advantage of the widow’s age and mental and physical state, gained her trust and convinced her to cut off all ties to others in the widow’s life so he could have complete control. Without the widow’s permission or approval, John wrote checks to himself and family members for large sums, withdrew cash from the widow’s bank account, sold property for significantly less than it was worth, bought expensive items claiming they were gifts from the widow, and failed to pay years’ worth of taxes on behalf of the estate. John was able to steal over $3 million dollars from the widow’s account, none of which benefitted the widow nor was used to pay her expenses as he was required to do. The money was used to buy John cars, jewelry, and pay his father and other family to assist him in the crime. John was charged with RICO. The predicate acts were 20 incidents of theft and 3 incidents of money laundering. The state proved 15 incidents of theft and 1 incident of money laundering beyond a reasonable doubt. They were then able to prove all elements of RICO. John committed at least two instances of racketeering activity (theft and money laundering) that had the same intents and results (gaining money and property), the same victim (the widow), the same accomplices (John, his father, other family), and the predicate acts (theft and money laundering) were not isolated events. They were a pattern of continual criminal activity. Therefore, John may be found guilty of committing RICO.

If convicted of RICO in violation of Section 16-14-4, a person faces 5 to 20 years imprisonment, a fine of $25,000.00 or three times the amount of pecuniary value gained from the criminal activity (whichever is greater), or both. It is also important to note that the state can separately charge criminal offenses that may also be listed as one of the predicate acts. For example, if a person is charged with one count of RICO and one of the predicate acts is murder, the state can also separately charge one count of murder and so long as they prove it beyond a reasonable doubt, the person can be convicted on both counts. This means that the person also faces the significantly more severe punishment that comes with a murder conviction.

The state must prove every element of a crime beyond a reasonable doubt for a person to be convicted. Because there are so many distinct elements for RICO and some of those elements also have their own separate elements, there are several available defenses that can be raised when facing RICO charges. A few common defenses are:

1. There was no pattern of racketeering. Simply associating with other alleged criminals is not enough to prove there was an enterprise for RICO purposes. For example, five friends live in the same house, and each participates in different types of crimes. One deals cocaine, two are embezzling from their respective employers, one creates forged credit cards, and one is a computer hacker. Each are aware of the others illegal activity but they do not help one another commit crimes and do not share the proceeds gained from their crimes. They are not committing these crimes to achieve a common goal. If charged with RICO, they have a plausible defense these predicate crimes do not make up a pattern of racketeering activity.
2. The accused did not commit at least two predicate acts. It is not enough for the state to prove that only some of the individuals in the enterprise committed two or more predicate acts, even if everyone else knew about them. It must be proven that each individual committed at least two acts. Assume that the five individuals from the example above were committing their respective crimes for the purpose of pooling the money to buy a yacht in cash. John, one of the individuals who embezzled from his company, only stole money one time and never attempted to do it again. He did not assist the others in their criminal activity, nor commit or attempt to commit any other type of crime. Even if it is proved all other people in the group committed multiple predicate acts, John has a valid defense against the RICO charge because he himself did not commit at least two predicate acts.
3. The predicate acts were not committing in furtherance of the scheme. Using the same example from above, assume that in addition to embezzling from his company once, John also stole a new MacBook to give to his son, stole three expensive designer purses to give to his girlfriend, and used a stolen credit card to pay for his own plastic surgery. These other crimes were isolated incidents and not done in furtherance of the enterprise’s goal. Therefore, they would not be considered predicate acts under RICO and John still has a defense that he did not participate in at least two predicate crimes.

A prosecution under the Georgia RICO statute can be complex. If you have been charged or are being investigated for a RICO violation, you need an experienced criminal defense attorney who will defend your legal rights. Our firm has successfully represented clients charged under the Georgia RICO statute in the past and we may be able to help.

The information provided above is a very general summary of Georgia RICo law and charges at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a Georgia criminal defense lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all state and federal courts in Georgia.