Martin v. State

• Decision Date: 15 November 1988
• Docket Number: Nos. 77025-77027,s. 77025-77027
• Citation: 376 S.E.2d 888,189 Ga.App. 483
• Parties: MARTIN v. The STATE. MERKA v. The STATE. ALLEN v. The STATE.
• Court: Georgia Court of Appeals

Page 888

376 S.E.2d 888

189 Ga.App. 483

MARTIN v. The STATE.

MERKA v. The STATE.

ALLEN v. The STATE.

Nos. 77025-77027.

Court of Appeals of Georgia.

Nov. 15, 1988.

Rehearings Denied Dec. 5, 1988.

Certiorari Denied Feb. 2, 1989.

Steven T. Maples, for Martin.

Calvin A. Leipold, Jr., Decatur, for Merka.

Mary S. Donovan, Atlanta, for Allen.

Robert E. Wilson, Dist. Atty., Patricia G. Higginbotham, Eleni A. Pryles, Asst. Dist. Attys., for appellee.

DEEN, Presiding Judge.

Some time near the beginning of 1983 there developed in DeKalb County an undertaking whereby, for a fee, persons cited for various traffic offenses (and, in particular, those cited for driving under the influence of alcohol) were enabled, either directly or through an intermediary, to contact certain attorneys who, likewise either directly or through an intermediary, would arrange for the client's file to be surreptitiously removed from the Solicitor's Office, so that the driver's license would be immediately returned to the client and his case would never appear on the docket. When facts concerning this activity began to come to light and the "fixed" cases to be reconstructed, it became evident that there was a sizable group associated in the enterprise in one role or another, and that it was engaged in a wide-ranging pattern of what can only be labeled "racketeering activity" relative to "ticket-fixing."

After an eight-month police investigation and a four-month Special Grand Jury investigation, Dale T. Martin, Steve A. Merka, and Charles Marion Allen, appellants in these three companion cases, were indicted for violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act (two counts each) and stealing public records (75 counts altogether). Additionally, Martin and Merka were indicted for first-degree forgery (one count each) and criminal attempt to steal public records (one count each). Also indicted were four others, one of whom pled guilty and three of whom were tried separately. The three appellants here were tried jointly by a DeKalb County jury, which found Martin guilty on all counts with which he was charged except one count of stealing public records; Merka was found guilty on all counts with which he was charged except two counts of stealing public records; and Allen was found guilty on all counts with which he was charged, except four counts which were dropped when a witness refused to testify. Martin and Merka received twenty-year sentences; Allen received ten years; all were held jointly liable for restitution in the amount of $137,092.34. Additionally, Martin and Merka were disbarred from the practice of law. After denial of their motions for new trial, the three filed appeals with this court. Held:

1. Before detailed consideration is given to each of appellants' enumerations of error, a few words may be in order regarding the factors common to the individual incidents presented in evidence at trial. The common factors were (1) each offender had contacted either Martin, Merka, or Allen to handle his or her DUI or traffic offense, and (2) the case file of each offender who testified at trial had been removed from the Solicitor's Office. Additionally, each offender had paid a sizable fee for this service, and several testified that their attorneys had alluded to the fact that the fee would be "split" with someone other than the person (or attorney) whom the offender had actually paid.

It is also important to note that Merka was a former employee of the Solicitor's Office and had retained such cordial relations with his former colleagues that he had literally "the run of the place." Moreover, it was through this former association that Merka was in a position to know not only how to remove court records physically filed in the Solicitor's Office (whether with his own hands or by the presumably well-greased palms of others), but also how to obtain those records originally filed in a satellite tribunal, through the expedient of having the case "bound over" and physically transferred to the Solicitor's Office, thereby creating numerous opportunities for a deft hand to extract the desired files from the group.

2. Appellants were convicted of two substantive violations of the Georgia RICO Act, OCGA § 16-14-4(a), (b). OCGA § 16-14-4(b) proscribes the conducting or participating, directly or indirectly, in the affairs of an enterprise through a pattern of racketeering activity. OCGA § 16-14-4(a) proscribes the acquiring or maintaining, directly or indirectly, of any interest in or control of any enterprise, real property, or personal property of any nature, including money, through a pattern of racketeering activity.

The Georgia RICO Act, OCGA § 16-14-1 et seq., is modeled upon and closely analogous to the Federal RICO statute. Chancey v. State, 256 Ga. 415, 349 S.E.2d 717 (1986). Because the statute is fairly recent, there are few decisions from Georgia courts interpreting it. Therefore, we must look primarily to the federal decisions for guidance on our interpretation of the Georgia RICO statute.

The State's indictment named seven defendants who composed the group of individuals who were associated in fact, although they did not constitute a legal entity. Appellants argue the evidence was insufficient at trial to establish a group of individuals associated in fact--an enterprise, as defined by the RICO Act--in whose affairs they could have participated directly or indirectly. We disagree.

All appellants argue that the evidence was insufficient at trial to establish the existence of an enterprise so as to authorize conviction under the Georgia RICO statute. We find, however, that the evidence adduced at trial sufficiently established the existence of an enterprise to authorize conviction under RICO. In United States v. Elliott, 571 F.2d 880 (5th Cir.1978), the court held at 898: "A jury is entitled to infer the existence of an enterprise on the basis of largely or wholly circumstantial evidence ... [A] RICO enterprise cannot be expected to maintain a high profile in the community. Its affairs are likely to be conducted in secrecy and to involve a minimal amount of necessary contact between participants. Thus, direct evidence of association may be difficult to obtain."

In order to prove a violation of the Georgia RICO Act, the State must initially prove the existence of an enterprise. United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981); Chancey v. State, supra 256 Ga. at 417, 349 S.E.2d 717. OCGA § 16-14-3(1) defines "enterprise" as follows: "any person, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this State, or other legal entity; or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental as well as other entities." United States v. Elliott, supra at 897, defines "enterprise" as follows: "[W]e are persuaded that 'enterprise' includes an informal, de facto association ... In defining 'enterprise,' Congress made clear that the Statute extended beyond conventional business organizations to reach 'any ... group of individuals' whose association, however loose or informal, furnishes a vehicle for the commission of two or more predicate crimes ... There is no distinction, for 'enterprise' purposes, between a duly formed corporation ... and an amoeba-like infra-structure that controls a secret criminal network." Under Turkette, supra 452 U.S. at 583, 101 S.Ct. at 2528, an enterprise is proven by "evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit."

In a subsequent case, United States v. Cagnina, 697 F.2d 915, 920 (1983), the Eleventh Circuit (successor to the Fifth Circuit) adopted the rationale of Turkette and Elliott: "This circuit has interpreted 'enterprise' to include an informal criminal network engaged in racketeering activity, ... In United States v. Elliott ... the court held that a group of persons who had committed a variety of unrelated offenses with no agreement as to any particular crime could be convicted of a RICO offense, because they were associated for the purpose of making money from repeated criminal activity." Turkette and related cases require the State to prove both the separate elements of an enterprise and a pattern of racketeering. Cf. OCGA § 16-14-4(a), (b). Appellant Martin alleges that the State used the same evidence to establish both those elements, a practice which he claims is barred under Turkette. What the court actually held in Turkette, however, was that 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." Id. 101 S.Ct. at 2529.

Martin argues that the State proved only that he knew appellant Merka but failed to prove that he knew of the existence of any of his other five co-defendants. He also claims that the State failed to prove that appellants' association had an "ascertainable structure," as required by United States v. Anderson, 626 F.2d 1358 (8th Cir. 1980).

We agree with the analysis set forth by the 11th Circuit in such cases as Turkette and Elliott, supra, and find appellants' arguments to the contrary without merit. First, contrary to appellants' allegations, the State was not required to prove that all of the members of the enterprise knew of the others' existence. Neither did the State have to prove an "ascertainable structure," as Martin suggests. See our quotation from Elliott, supra at 897. We note that such cases as United States v. Sutton, 605 F.2d 260 (6th Cir. 1979), are so distinct from the instant case on their facts as to be largely inapplicable to the case sub judice.

While the testimony of more than seventy witnesses in the cases at...