FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 14, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11534

Non-Argument Calendar

________________________

D. C. Docket No. 03-00010-CV-DHB-3

RICHARD E. TUCKER, 

Plaintiff-CounterDefendant-Appellant, 

versus 

MORRIS STATE BANK, 

DONALD C. CRAFTON, Vice Chairman/Director, Morris 

State Bank, et al., 

Defendants-CounterClaimants-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:
 Construing his brief liberally, Tucker argues for the first time on appeal the Bank’s 1

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. 

 

2

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. We affirm the district court. 1

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
3

drawn from the facts, must be viewed in the light most favorable to the nonmoving 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 abovereferenced 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). 
4

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,
5

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
6

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.