Richard E. Tucker v. Morris State Bank

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 14, 2005
No. 05-11534
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 03-00010-CV-DHB-3
RICHARD E. TUCKER,
Plaintiff-Counter-
Defendant-Appellant,
versus
MORRIS STATE BANK,
DONALD C. CRAFTON, Vice Chairman/Director, Morris
State Bank, et al.,
Defendants-Counter-
Claimants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 14, 2005)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Richard Tucker appeals the district court’s grant of Morris State Bank’s
motion for summary judgment on his complaint alleging violations of the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§§ 1961–68. Tucker contends the Bank committed extortion, as well as mail and
wire fraud, by forcing him to pay on a note which had already been satisfied in
order to be released from jail. Tucker also asserts the district court applied the
summary judgment standard incorrectly.1 We affirm the district court.
I. DISCUSSION
We review “a grant of summary judgment de novo, using the same legal
standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184
(11th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and
affidavits show there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 106 S. Ct. 2548,
2552 (1986) (quoting Fed. R. Civ. P. 56(c)). The evidence, and all inferences
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Construing his brief liberally, Tucker argues for the first time on appeal the Bank’s
actions constituted the RICO predicate acts of extortion under the federal Hobbs Acts, mail
fraud, and wire fraud. In the district court, Tucker did not contest the construction of his
complaint as only raising the RICO predicate acts of extortion and bribery under state law.
Thus, Tucker waived any arguments regarding federal RICO predicate acts by failing to raise
them in the district court and we will not consider them on appeal. See Stavropoulos v.
Firestone, 361 F.3d 610, 616 n.6 (11th Cir. 2004), cert. denied, 125 S. Ct. 1850 (2005).
Tucker also contends the Bank was required to depose all of its named potential
witnesses and demonstrate the inadequacy of their testimony in order to satisfy its summary
judgment burden. This argument has no merit.
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drawn from the facts, must be viewed in the light most favorable to the non-
moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S. Ct.
1348, 1356 (1986).
A. RICO Predicate Acts
RICO provides a private civil remedy to recover treble damages to “[a]ny
person injured in his business or property by reason of a violation of” the
substantive provisions contained in § 1962. 18 U.S.C. § 1964(c). RICO makes
criminally liable those who engage in, or aid and abet another to engage in, a
pattern of racketeering activity if they also: (1) use or invest income derived from
the pattern of racketeering activity in the operation of an enterprise engaged in
interstate commerce; (2) acquire or maintain, through the pattern of racketeering
activity, any interest in or control over such an enterprise; or (3) conduct or
participate in the conduct of the affairs of such an enterprise through a pattern of
racketeering activity. 18 U.S.C. § 1962. A conspiracy to violate any of the above-
referenced provisions is also unlawful. 18 U.S.C. § 1962(d). “The four elements
of civil RICO liability are (1) conduct (2) of an enterprise (3) through a pattern
(4) of racketeering activity.” Langford v. Rite Aid of Ala., Inc., 231 F.3d 1308,
1311 (11th Cir. 2000).
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A plaintiff in a civil RICO action must identify and prove a pattern of
racketeering activity, defined as at least two ‘predicate acts’ of racketeering
activity, the last of which occurred within the last ten years. 18 U.S.C. § 1961(5);
see also Sedima, S.P.R.L. v. Imrex Co., Inc., 105 S. Ct. 3275, 3285 n.14 (1985)
(noting a pattern of racketeering activity requires at least two distinct but related
predicate acts). A racketeering activity is defined as “any act or threat involving
murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in
obscene matter, or dealing in a controlled substance or listed chemical . . . which is
chargeable under State law and punishable by imprisonment for more than one
year.” 18 U.S.C. § 1961(1).
Tucker’s efforts to demonstrate the predicate RICO act of bribery were
insufficient as a matter of law. The crime of bribery under Georgia law requires
something be given or offered to “any person acting for or on behalf of the state or
any political subdivision thereof, or of any agency of either . . . with the purpose of
influencing him or her in the performance of any act related to the functions of his
or her office or employment.” O.C.G.A. § 16-10-2(a)(1). Tucker does not allege
the Bank bribed any public official or anyone working for a public official. Tucker
only alleges the Bank bribed his ex-wife to file divorce against him and to write a
check from his account. There is no allegation or evidence in the record, however,
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suggesting Tucker’s ex-wife was a state official or representative. Accordingly,
Tucker’s RICO claim predicated on the crime of bribery fails.
Tucker’s attempt to show the predicate RICO act of extortion under state law
also fails as a matter of law. In order to state a claim of extortion under Georgia
law, Tucker must show the Bank “unlawfully obtained property” from him.
O.C.G.A. § 16-8-16(a). Tucker’s complaint states the Bank foreclosed upon a
four-wheeler, a trailer, and a piece of land. Tucker admitted at his deposition,
however, that he did not pay off the loans taken out for those pieces of property.
While Tucker’s statements regarding his truck are arguably sufficient to create a
disputed issue of fact, this fact is not material to his extortion claim because the
truck was never foreclosed upon or repossessed by the Bank. Therefore, it could
not have been “unlawfully obtained property.” The other references in Tucker’s
complaint to extortion are conclusory allegations that the Bank committed
extortion and violated RICO, and have no probative value in summary judgment.
United States v. Trainor, 376 F.3d 1325, 1334 n.5 (11th Cir. 2004). Thus,
Tucker’s RICO claim predicated on the crime of extortion also fails.
B. Summary Judgment Standard
Tucker bore the burden at summary judgment of pointing to specific
evidence negating the Bank’s showing the record lacked sufficient evidence to
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establish predicate acts under RICO. Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1116–17 (11th Cir. 1993). Tucker’s response to the Bank’s summary judgment
motion, however, was nearly entirely devoid of citations to specific evidence.
Instead, Tucker made vague claims in his response that “Defendants’ affidavits and
exhibits are rebutted by evidence they provided the plaintiff in response to his
discovery request.” Tucker then broadly claimed the evidence provided in
discovery showed the loan on his Toyota truck was not past due in August 1995,
and the actions taken by the Bank to recover on his loans were inconsistent with
standard operating procedures. Tucker later alleged he would prevail at trial if
allowed to present the evidence outlined in his complaint and RICO statement.
Tucker failed to direct the district court to evidence in the record to demonstrate he
could prove the alleged predicate RICO acts. Thus, the district court did not err in
concluding these vague claims were insufficient to carry Tucker’s summary
judgment burden, and in applying the summary judgment standard.
II. CONCLUSION
Tucker failed to present any evidence the Bank committed one or more
predicate RICO acts. Furthermore, the court did not err in applying the summary
judgment standard.
AFFIRMED.
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