Dover v. State
| Decision Date | 03 July 1989 |
| Docket Number | A89A0268,Nos. A89A0235,s. A89A0235 |
| Citation | 385 S.E.2d 417,192 Ga.App. 429 |
| Parties | DOVER v. The STATE. BARNES v. The STATE. |
| Court | Georgia Court of Appeals |
Gammon & Anderson, Wayne W. Gammon, W. Wright Gammon, Jr., Cedartown, for appellant in case no. A89A0235.
Barkley & Garner, Larry J. Barkley, Rome, for appellant in case no. A89A0268.
Stephen F. Lanier, Dist. Atty., Harold Chambers, Asst. Dist. Atty., for appellee.
Dover and Barnes appeal their convictions for multiple offenses.
The Cagle family, Jimmy Lewis Cagle, his wife Mary Elaine Cagle, and their son and daughter, Jimmy Lewayne Cagle and Lisa Cagle Reid, were charged along with Dover, Barnes and six others in Floyd County with violations of the Georgia RICO Act, OCGA § 16-14-1 et seq. This arose from a string of arsons allegedly solicited by Dover, Barnes, and the six others and carried out by the Cagles assisted by Larry Reid, Lisa's husband, named as an unindicted co-conspirator. All defendants except Dover and Barnes pled guilty to various offenses and testified against them.
Favorably to the verdict, the evidence showed that Barnes solicited the Cagles to burn the house in Floyd County where he lived and agreed to pay them. He assisted his daughter, to whom he had previously deeded the house, in submitting a claim to the insurance company.
Dover owned a Polk County trailer park where the father of Jimmy Lewis Cagle resided. Reid and Lisa wanted to purchase a trailer from Dover. He agreed to lower the price of the trailer and move it to Rome if they would torch a trailer resided in by McAllister, a tenant with whom he was having a dispute. After the fire, Dover made an insurance claim but discovered that the policy had not been renewed. He spoke by phone with Jimmy Lewis Cagle who advised him to get the number off an insured trailer and put it on the uninsured one. Dover did so and collected on the insurance.
The RICO count alleged that the defendants "did endeavor to acquire and maintain, directly and indirectly, and did acquire and maintain, directly and indirectly, an interest in and control of real property, personal property and money, ... through a pattern of racketeering activity consisting of arson, false statements, ... and mail fraud ..." as more fully set out in the indictment.
The following predicate acts were alleged against Barnes and Dover in the RICO count:
Dover: (1) arson in the first degree by soliciting the burning of the McAllister trailer, (2) making false statements to fire officials that McAllister and her boyfriend burned the trailer, and (3) committing mail fraud, 18 U.S.C. § 1341, an offense defined as racketeering activity, by devising a scheme to defraud the insurance company of money and causing the mails to be used in furtherance of that scheme.
Barnes: (1) arson in the first degree by soliciting the burning of his daughter's house and (2) that Barnes committed mail fraud, 18 U.S.C. § 1341, an offense defined as racketeering activity, by devising a scheme to defraud her insurance company of money and causing the mails to be used in furtherance of that scheme.
Substantive offenses were also charged:
Dover: Count IV, arson OCGA § 16-7-60 (); Count XII, making a false statement in matters within the jurisdiction of state and political subdivisions, OCGA § 16-10-20 (); Count XVII, making a false insurance claim, OCGA § 33-1-9.
Barnes: Count VII, arson OCGA § 16-7-60 (); Count XX, making a false insurance claim, OCGA § 33-1-9.
At the close of the State's case, the court granted directed verdicts to Barnes on Count XX and to Dover on Counts IV and XII.
Dover was found guilty of Count I, RICO, and Count XVII, making a false insurance claim. Barnes was found guilty of Count I, RICO, and Count VII, arson.
1. Dover enumerates the failure of the court to grant his motion for directed verdict on the RICO count. The enumeration claims the evidence was insufficient as to proof of a pattern and as to proof that Dover was a member of an enterprise.
Georgia's RICO act, while it has similarities to the federal RICO statute, has a number of significant differences.
Chancey v. State, 256 Ga. 415, 418, 349 S.E.2d 717 (1986). (Indention omitted).
The Supreme Court in Chancey, supra at 427(4), 349 S.E.2d 717, upheld the act against a claim that it was unconstitutional due to vagueness and overbreadth.
As quoted above, the indictment here was framed only as a violation of OCGA § 16-14-4(a), which does not require that there be proof of an "enterprise," but only that the accused "through a pattern of racketeering activity or proceeds derived therefrom, ... acquire or maintain, directly or indirectly, any ..., real property or personal property of any nature, including money." Dover received $6,000 in insurance proceeds. There was no requirement that an enterprise or Dover's association with it be proven and the failure to do so was not error.
Dover argued below that the pattern requirement had not been met because, although several crimes had been alleged as predicate acts, they all arose from "one incident," i.e., the burning of the trailer and obtaining insurance proceeds as a result, and such an incident was never meant to be covered by Georgia's RICO act. His argument is premised on the discussion of the federal act's "pattern" requirement contained in various circuit court cases applying Sedima v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), which focused on a requirement of "continuity" to establish a pattern. Sedima, supra at 496, fn. 14, 105 S.Ct. at 3285, fn. 14.
Although they do not control construction or application of the state RICO statute, federal circuit court opinions regarding the federal statute are instructive. The Fourth, Seventh and Eighth Circuits have held that a single fraudulent scheme, regardless of the number of crimes and predicate acts contained in it, will not constitute a pattern for federal RICO purposes. Intl. Data Bank v. Zepkin, 812 F.2d 149, 154(4) (4th Cir.1987); Lipin Enterprises v. Lee, 803 F.2d 322, 324 (7th Cir.1986); Superior Oil v. Fulmer, 785 F.2d 252 (8th Cir.1986). The Fifth Circuit, however, has held that two related acts may be sufficient to form the required pattern, while the Eleventh Circuit also requires a showing of a threat of continuity. Bank of America, etc., v. Touche Ross, etc., 782 F.2d 966, 970(6) (11th Cir.1986); R.A.G.S. Couture v. Hyatt, 774 F.2d 1350, 1355(7) (5th Cir.1985). The Eighth Circuit position has been rejected as to federal RICO in H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989), which held that "[w]hat a plaintiff or prosecutor must prove is continuity of racketeering, or its threat, simpliciter." Id. 492 U.S. at ----, 109 S.Ct. at 2901.
Dover urges the adoption of the former approach, but that approach ignores the differences between the federal and Georgia statutes. OCGA § 16-14-3(2) defines "pattern of racketeering activity" as engaging in "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...." The Georgia statute requires the interconnectedness not contained in the wording of its federal counterpart.
Because of this difference, our legislature intended to and did, by virtue of OCGA §§ 16-14-4(a) and 16-14-3(2), subject to the coverage of our 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. See, United States v. Martino, 648 F.2d 367, 402(93) (5th Cir.1981), discussed in "Georgia Racketeer Influenced and Corrupt Organization Act," supra at 35.
Dover's additional argument, that the federal...
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