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Robert Bowes
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BREAKING: In Georgia RICO cases that will have big impact on future motions, Judge Scott McAfee order released today Denies a variety of motions by Sydney Powell and Ken Cheseboro.
Flawed rationale and flagrant contradiction of law in this ruling is likely to draw appeals.
Powell and Cheseboro each filed several demurrers to dismiss the charges because the allegations are invalid and fail to constitute any crime.
Judge McAfee did not address the Motion in Limine filed by Sydney Powell October 17 that seeks Court to confirmation that Georgia law grants two types of authority to Coffee County to inspect/fix flawed voting computers.
Judge McAfee denied the set of earlier motions refusing further hearings.
He determined the charges were facially sound.
He contradicted Georgia law by claiming that a predicate act is not required to be repeated (continuity).
He contradicted Georgia law by claiming prosecution does not need to show that there were more than one predicate acts.
Georgia RICO law requires two predicate acts.
Then pages later he writes that SCOTUS established that continuity is required.
Judge McAfee argued that the Defendants can only dismiss if they plead guilty.
He did not bother to consider possibility Defendant denied charges and is innocent.
In doing so he makes it impossible for any defendants to dismiss any charges.
Rather, guilt is presumed before trial.
He referred to no summary judgment being available in criminal cases.
He wrote that if parties don’t go to trial, how can the Defendants exercise their double jeopardy defenses the next time.
Cheseboro cited he had no pecuniary gain required for RICO to apply.
Judge McAfee wrote that although the law contains the requirement for pecuniary gain, because the legislature did not write the clause twice, then, in his mind, it doesn’t really apply and is irrelevant. Then he opined the drafters intended the statute should be liberally construed.
Judge McAfee twisted further about the definition of pattern of racketeering activity.
He ignored that the State did not prove there was a pattern and refused to consider the Defendants claims that there was no pattern.
More contortion when the he compared Fed RICO “requires at least a pattern of racketeering activity” to GA RICO “means a pattern of racketeering activity” writing that “ ‘requires’ and ‘means’ are materially different.”
Deeper into bizzarro world Judge McAfee cites GA code requires at least two such (predicate) acts, then writes “the implication is that while two acts are necessary, not that it ‘means’ two such acts.”
Judge McAfee: “Powell argues Count 1 is defective because it fails to allege sufficient predicate acts against her.
She further notes that Counts 32-37 only qualify as one transaction for alleging a sufficient number of predicate acts.”
Here he inverts jurisprudence: “The fact remains that our Supreme Court has provided a binding definition of a “pattern of racketeering activity” that does not include continuity: “proof of two but separate related acts is sufficient[.]” Dorsey v. State, 279 Ga. 534, 541 (2005).
Defendants have not sufficiently shown how this precedent can be disregarded, or why Georgia RICO requires an additional element.” Excuse me, the prosecution is the side that needs to prove pattern, continuity and two or more predicate acts.
It is appropriate for the Defendants to deny existence of pattern, continuity and predicate acts.
There were none.
And, “The State need not have asserted that Powell personally participated in even a single predicate offense to sufficiently allege the RICO count laid out against her.”
What!?
So now none of the defendants are required to have committed any predicate acts?
Judge McAfee writes as long as someone else in the alleged “enterprise” was doing predicate acts, the other defendants can be charged.
Well, that could mean that most US citizens are now co-conspirators.
“‘Cotman v. State, 342 Ga. App. 569 (2017) (“under Georgia law, a person may be found guilty of a RICO conspiracy ‘if they knowingly and willfully join a conspiracy which itself contains a common plan or purpose to commit two or more predicate acts’”).”
For many of the Motions, Judge would restate a piece of Defendants arguments, then essentially proclaim them irrelevant.
Good luck interpreting several other key excerpts from Judge McAfee:
Powell argues conclusively “that Coffee County officials authorized her alleged actions.”
“Powell adopts Defendant Smith’s Demurrer filed September 11, 2023 (Smith Doc. 24), and contends that the State did not adequately define the “enterprise,” Cheseboro “asserts that based on his interpretation of the Electoral Count Act, the actions of the “Republican electors” did not violate this allegation because they were elected and qualified by the Republican Party and did not purport to be certified.”
“The State is under no obligation to further tailor this indictment that charges all elements of the alleged crime.”
“The State need not have asserted that Powell personally participated in even a single predicate offense to sufficiently allege the RICO count laid out against her.”
“If Defendant Chesebro believes that the evidence will not show any false statements, or that the Georgia Secretary of State’s Office and Governor’s Office had no authority over presidential electors after December 8, 2020, the time to demonstrate that is at trial.”
“One must take the facts of an indictment as accepted premises, regardless of whether they ultimately prove true.”
