Have you Been Charged with Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act?
A charge under the RICO Act is a severe crime and does not need to be taken lightly. It can have lasting effects on your life, so it is important to hire an Attorney from the very beginning. Lawson and Berry and their team of Georgia RICO Lawyers have over 25 years of experience. Let their experience work for you. Contact us today for a free case evaluation.
Georgia Law on RICO
A person may be charged under the RICO statute if they participate in an interrelated pattern of criminal activity motivated by or resulting in monetary gain or economic or physical threat or injury. O.C.G.A. §16-14-4 outlines four ways a person can be guilty of violating the Racketeering statute:
a. It shall be unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money;
b. It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity;
RICO is a crime that has a federal statute and a Georgia state statute. The Georgia statute defines racketeering more broadly than the federal law does. In addition, it takes less to prove a pattern of racketeering activity under the Georgia statute than the federal one. However, the largest difference between the two is that Georgia does not always require the existence of an enterprise to constitute racketeering.
It is important to understand that the scheme does not have to be successful for a person to be convicted under the RICO statute.
What Does Enterprise Mean in Regards to RICO?
Under O.C.G.A. $ 16-14-3, enterprise includes any person, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of Georgia. However, it can also include businesses that are not legal entities but associate or identify as a group with a common purpose or goal. Therefore, enterprises can include legal and illegal entities and also includes governmental entities.
What is Racketeering Activity?
The Courts have concluded that racketeering activity means engaging in at least two acts of racketeering activity in furtherance of one or more incidents, schemes, or transactions 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. The incidents do not have the occur at the same time, but the Court has stated that at least one of the incidents must occur after July 1, 1980, and that the last of such acts occurred within four years, excluding any periods of imprisonment, after the commission of a prior act of racketeering activity. O.C.G.A. § 16-14-3(4)(A)
In simpler terms,“racketeering activity” means to commit, attempt to commit – or to solicit, coerce or intimidate someone else to commit – one of more than three dozen state crimes listed in the law.
In Georgia, courts have found people guilty of RICO in employee embezzlement cases, Ponzi schemes, credit schemes, complex investment schemes, or a series of thefts that aggregate to over $100,000. The statute is also often used to prosecute commercial gambling cases, pain management clinics, and public officials.
What Are Considered Predicate Crimes for RICO?
There are many crimes that can be used to show a pattern of unlawful conduct. The predicate crimes that fall under the RICO statute in Georgia include drug offenses, homicide, bodily injury, arson, burglary, forgery, theft, robbery, prostitution and pandering, distributing obscene materials, bribery, witness tampering, perjury, evidence tampering, commercial gambling, distilling liquors and alcoholic beverages, firearm violations, securities violations, credit card fraud, computer crimes, kidnapping, carjacking, and making terroristic threats. There are other offenses that can also be considered racketeering activity.
Georgia Case Law on Racketeering
An example of a defendant being convicted under the RICO statute can be found in Kilby v. State. 335 Ga. App. 238, (2015). The defendant, Kilby, was the director and a fiduciary of an animal shelter. During her time as director, Kilby linked two PayPal accounts that were intended for donations to the animal shelter to her own personal accounts and routed to herself a total of $10,500. In addition, she instructed her employees to give all the cash to her and to not give out receipts. After years of this occurring, an employee reported her to an investigative team of a local television network. The investigator discovered what Kilby was doing, and she was subsequently indicted for 29 counts of theft by taking and 29 counts of computer theft.
During the trial, Kilby argued that there was insufficient evidence to support theft by taking and racketeering. She specifically argued that the State failed to prove that the money she directed to her personal accounts was the property of the animal shelter. However, two members of the Board of Direction of the animal shelter testified that Kilby was never authorized to solicit funds and deposit them into her personal bank account. Moreover, Kilby testified that the transactions involved donation money that was intended for and belonged to the animals. Therefore, the jury found Kilby guilty of racketeering based upon the theft by taking incidents.
What has to be Proven to be Convicted
To be convicted of violating the RICO Act, the State must demonstrate that the defendant is guilty beyond a reasonable doubt. That involves showing a pattern of unlawful conduct and that the offenses committed were ones included under the RICO Act. A couple of isolated incidents will not be sufficient to establish a pattern.
Also, the conduct must be criminal. The person committing the racketeering activity must have the requisite intent to be found guilty of the crime.
Penalty for a RICO Conviction in Georgia
A person convicted of a crime under the RICO Act will be guilty of a felony and will be punished by prison, a fine, or both. If the penalty is prison, the term will be between five and twenty years. If the penalty is a fine, it will not exceed the greater of $25,000.00 or three times the amount of any pecuniary value gained by him or her from such violation. The fine amount will be determined by a hearing.
In addition to prison time and or a fine, the defendant could also be subject to civil punishments as well. A judge may order a defendant to give up any business interest in a property that was gained through violating the RICO statute. Another option is that the judge could enforce an injunction or prohibition on the defendant from engaging in the same type of industry as the business they were convicted for.
Victims can also file actions against the defendant for three times the amount of damages they sustained. If appropriate, they can also seek punitive damages.
It is also important to mention 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 arson, the state can also separately charge one count of arson. If convicted, the defendant could be guilty of both RICO and arson and would face separate punishments for each.
Georgia Defenses to a RICO Charge
Insufficient Evidence to Establish a Pattern/Lack of Evidence to Demonstrate Pattern: Evidence that just shows two isolated incidents will not be enough to show a pattern. Additionally, acts that were not in furtherance of a scheme should not be considered predicate acts. Your Georgia Rico Lawyer will work tirelessly to show that other incidents were isolated and were not done in connection with an enterprise or other scheme.
No connection between the injury and predicate act. When commencing an action in civil court, the evidence must show that the predicate act (the crime) was the proximate cause of the plaintiff's injuries. If not, then the plaintiff cannot assert a claim under the RICO Act. Our attorneys will argue that the acts were isolated incidents and not done in furtherance of the enterprise's goal.
I did not have any direct association with the crime being carried out. The Georgia RICO Act states that a defendant can still be convicted if they conspired to violate any of the provisions or if they indirectly participated in racketeering activity. Therefore, you can still be guilty under the RICO Act even if you did not directly participate.Merely associating with other criminals is not enough to prove that there was racketeering activity.
Mistaken Identity: It may be the case that your lawyer is not arguing that a crime was not committee; but that, the person charged with the crime is not correct. Evidence such as an alibi would be beneficial to assist in demonstrating you are not the correct person to be charged with this offense.
Illegal Search and Seizure: If the evidence being used against you was the result of an illegal search, your Rico Attorney in Georgia will argue for its exclusion. This could result in a dismissal of the charges against you.
What are not Defenses
There was no evidence of an enterprise: Georgia does not require that there is an actual enterprise. They only require 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, (1995).
There were years between the incidents: Georgia law O.C.G.A. §16-4-3(4)(A) states that as long as the incidents occurred within four years of each other, then it can still be considered a pattern of racketeering activity.
A conviction under the RICO Act can be damaging to both you and your loved one's future. It is crucial that you retain counsel that cares about your future as much as you do. Lawson and Berry and their team of Georgia Attorneys truly care about you and your case. They will be available to you 24/7- nights, weekends, and holidays to ensure you get the best representation possible. Call us today for a free case evaluation.