{ "id": 8527791, "name": "STATE OF NORTH CAROLINA ex rel. Lacy H. Thornburg, Attorney General, Plaintiff v. LOT AND BUILDINGS at 800 Waughtown St., Tax Block 741, Lot 101A, Winston-Salem, N.C., being property described in Deed Book 1504, Page 1059, Forsyth County Registry, Deeded to Edward Fred Bowman; plus U.S. Currency in the amount of $37,132.05; ONE (1) 1988 CHEVROLET PICK-UP TRUCK, Vehicle Identification Number 1GCDC14K4JE108426; and SEVERAL GAMBLING DEVICES, Including Two (2) Electronic Poker Machines and Assorted Lottery Tickets, Gambling Stamps, Betting Sheets, and Associated Items, Defendants", "name_abbreviation": "State ex rel. Thornburg v. Lot & Buildings at 800 Waughtown St., Tax Block 741, Lot 101A", "decision_date": "1992-10-06", "docket_number": "No. 9121SC742", "first_page": "559", "last_page": "566", "citations": [ { "type": "official", "cite": "107 N.C. App. 559" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "62 ALR4th 654", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 3, "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 14-3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-291.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-302", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-293", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "18 U.S.C. \u00a7 1961", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(1)", "parenthetical": "Emphasis added." } ], "opinion_index": 0 }, { "cite": "353 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "84 N.C. App. 666", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169132 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/84/0666-01" ] } ], "analysis": { "cardinality": 647, "char_count": 16022, "ocr_confidence": 0.767, "pagerank": { "raw": 2.3181068408277913e-07, "percentile": 0.7894415852043883 }, "sha256": "1c4c782aaf62bbe05c768d131e13b46e94f843ca18cfed100bbc634515729310", "simhash": "1:ce18b1105a7fae67", "word_count": 2446 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and GREENE concur." ], "parties": [ "STATE OF NORTH CAROLINA ex rel. Lacy H. Thornburg, Attorney General, Plaintiff v. LOT AND BUILDINGS at 800 Waughtown St., Tax Block 741, Lot 101A, Winston-Salem, N.C., being property described in Deed Book 1504, Page 1059, Forsyth County Registry, Deeded to Edward Fred Bowman; plus U.S. Currency in the amount of $37,132.05; ONE (1) 1988 CHEVROLET PICK-UP TRUCK, Vehicle Identification Number 1GCDC14K4JE108426; and SEVERAL GAMBLING DEVICES, Including Two (2) Electronic Poker Machines and Assorted Lottery Tickets, Gambling Stamps, Betting Sheets, and Associated Items, Defendants" ], "opinions": [ { "text": "WELLS, Judge.\nDefendant submits four assignments of error for our review. Defendant first assigns as error the trial court\u2019s determination that it had subject matter jurisdiction over the case. Defendant\u2019s second and third assignments of error may be consolidated into one argument. Defendant contends that North Carolina\u2019s RICO forfeiture statute should not apply to him because the gambling charges for which he was convicted do not amount to \u201cracketeering activity\u201d or a \u201cpattern of racketeering activity\u201d as defined therein. Defendant argues that without any proof of racketeering activity, the State failed to establish a fundamental and indispensable element of its claim for North Carolina RICO forfeiture. Therefore, defendant contends the trial court erred in refusing to grant defendant\u2019s Rule 12(b)(6) motion and in granting partial summary judg- \u25a0 ment for the State. Finally, defendant argues that the final order of forfeiture and disposition violates the Constitutions of the United States and the State of North Carolina because (1) the RICO statute is unconstitutionally vague, (2) its severe provisions are unreasonable and arbitrary, and (3) it imposes the penalty of forfeiture in violation of due process. Because defendant failed to preserve this issue for review, the question of the North Carolina RICO Act\u2019s constitutionality is not properly before this Court.\nDefendant contends that the superior court lacked subject matter jurisdiction because the gambling offenses, which allegedly served as predicate acts of racketeering activity subjecting defendant\u2019s property to forfeiture, were misdemeanors within the original jurisdiction of the district court. Under North Carolina law, gambling offenses are general misdemeanors subject to the exclusive original jurisdiction of the district court. See N.C. Gen. Stat. \u00a7 7A-272. Defendant, however, has overlooked the crucial distinction between instituting a forfeiture action for violation of the RICO Act itself and prosecuting the underlying crime that is the basis of the violation.\nRICO forfeiture is a statutory cause of action, requiring an examination of legislative intent to interpret its enforcement procedure. The RICO statute was enacted in 1986 to remedy the problem of increasing organized crime. While the statute\u2019s primary purpose is to deter unlawful activity, it does not impose criminal penalties to accomplish its goals. Instead, North Carolina RICO is designed to prevent the unjust enrichment of criminal elements by the imposition of civil equitable sanctions requiring the forfeiture of certain assets used or acquired through a pattern of organized unlawful activity. See N.C. Gen. Stat. \u00a7 75D-2. The Act specifies that violation of RICO itself \u201cconstitutes a civil offense only and is not a crime.\u201d N.C. Gen. Stat. \u00a7 75D-4(b).\nGenerally, RICO prohibits persons from engaging in \u201ca pattern of racketeering activity\u201d and requires forfeiture of any property used in such activity. N.C. Gen. Stat. \u00a7\u00a7 75D-4,-5.,The statute sets forth various underlying crimes or so-called predicate acts which may constitute racketeering activity. The-State may institute criminal prosecution proceedings against individuals who engage in these predicate acts in violation of criminal law. If the State, however, is seeking recovery of certain assets derived from or used in the course of that unlawful activity, it must bring a separate civil forfeiture action under RICO. N.C. Gen. Stat. \u00a7 75D-5(a). Here, the State brought a civil forfeiture action, not a criminal prosecution. Therefore, the question of whether the superior court had original jurisdiction over defendant\u2019s misdemeanor gambling charges is irrelevant.\nThe question remains whether the trial court had jurisdiction to adjudicate the State\u2019s civil forfeiture claim. Subject matter jurisdiction over civil cases is statutorily conferred on the superior court under N.C. Gen. Stat. \u00a7 7A-240. This section vests \u201coriginal general jurisdiction of all justiciable matters of a civil nature\u201d concurrently in the superior court division and the district court division of the General Court of Justice. Unless jurisdiction is specifically placed elsewhere, both trial courts have subject matter jurisdiction over all \u201cjusticiable\u201d civil claims. Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673 (1987). The civil forfeiture dispute at the trial level was a \u201cjusticiable\u201d matter. Therefore, the superior court\u2019s determination that it had subject matter jurisdiction was proper.\nNext, defendant contends the trial court erred in finding that the misdemeanor gambling convictions constituted predicate acts of racketeering activity sufficient to subject defendant\u2019s property to forfeiture under the Act. Defendant relies upon N.C. Gen. Stat. \u00a7 75D-3(c)(l) which defines \u201cracketeering activity\u201d as \u201cacts which would be chargeable by indictment.\u201d Under North Carolina law, indictments are criminal pleadings necessary to instigate felony charges, not misdemeanor charges. See Article. I, Section 22, Constitution of the State of North Carolina; N.C. Gen. Stat. \u00a7\u00a7 15A-627, 7A-271. Defendant reasons that his gambling convictions are not indictable offenses because they are misdemeanors and therefore do not fall under the purview of the RICO forfeiture statute. Section 75D-3(c)(l) does exclude misdemeanors as predicate acts; however, defendant completely ignores the alternative definition of \u201cracketeering activity\u201d found in N.C. Gen. Stat. \u00a7 75D-3(c)(2). This section incorporates by reference offenses listed in Title 18 of the United States Code, \u00a7 1961(1), as prohibited racketeering activity. Included in this federal definition is the following:\n(A) any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in narcotic, or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year. . . .\n18 U.S.C. \u00a7 1961(1) (Emphasis added.)\nThe trial court found and the record reveals that defendant was convicted of two counts of gambling in houses of public entertainment in violation of N.C. Gen. Stat. \u00a7 14-293; two counts of operating or possessing gambling devices in violation of N.C. Gen. Stat. \u00a7 14-302; and one count of selling or possessing numbers tickets in violation of N.C. Gen. Stat. \u00a7 14-291.1. Each of these gambling offenses is chargeable as a general misdemeanor punishable by up to two years imprisonment, thereby satisfying the federal criteria for racketeering activity under U.S.C. \u00a7 1961(1). See N.C. Gen. Stat. \u00a7 14-3(a). Therefore, we find that the gambling offenses constitute \u201cracketeering activity\u201d under the alternate definition established in N.C. Gen. Stat. \u00a7 75D-3(c)(2).\nHaving determined that gambling is \u201cracketeering activity\u201d under the North Carolina RICO Act, the question becomes whether there is sufficient evidence to support a forfeiture of defendant\u2019s property. Under the RICO Act:\nAll property of every kind used or intended for use in the course of, derived from, or realized through a racketeering activity or pattern of racketeering activity is subject to forfeiture to the State.\nN.C. Gen. Stat. \u00a7 75D-5(a).\nThe State\u2019s forecast of evidence revealed that each incident of criminal conduct took place on the real property for which forfeiture was sought. Also included in the State\u2019s evidence were affidavits of law enforcement officers showing without question that such property was used to further defendant\u2019s criminal activity. We note that at the hearing before the trial court, the defendant made no effort to rebut or contest the State\u2019s evidence on this issue. We agree with the trial court\u2019s finding that there was ample evidence to show that defendant\u2019s property was used in the course of a racketeering activity as required by the Act.\nDefendant contends alternatively that even if his property was used in the course of racketeering activity, the convictions do not amount to a \u201cpattern of racketeering activity\u201d so as to warrant forfeiture under N.C. Gen. Stat. \u00a7 75D-5(a). For clarification, we note that, by its terms, North Carolina RICO compels forfeiture for proof of either \u201cracketeering activity\u201d or a \u201cpattern of racketeering activity.\u201d N.C. Gen. Stat. \u00a7 75D-5(a). The General Assembly, however, did not intend for the RICO statute to apply to isolated or unrelated episodes of unlawful activity. Instead, the General Assembly wanted to target only those engaging in \u201can interrelated pattern of organized unlawful activity.\u201d N.C. Gen. Stat. \u00a7 75D-2(c). We must therefore determine whether a pattern of racketeering activity existed as contemplated by the RICO statute. The Act defines a \u201cpattern of racketeering activity\u201d as:\nengaging in at least two incidents of racketeering activity that have the same or similar purposes, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated and unrelated incidents, provided at least one of such incidents occurred after October 1, 1986, and that at least one other of such incidents occurred within a four-year period of time of the other, excluding any periods of imprisonment, after the commission of a prior incident of racketeering activity.\nN.C. Gen. Stat. \u00a7 75D-3(b).\nThe trial court found and we agree that the defendant engaged in at least two incidents of racketeering activity that had the same or similar purposes and methods of commission; that these incidents were not isolated or unrelated; that they occurred after October 1, 1986; and that at least one incident occurred within a four-year period of the other. Thus, two of defendant\u2019s gambling convictions alone would constitute a \u201cpattern of racketeering activity\u201d under this Act. Since the evidence adduced at trial clearly shows that defendant engaged in a pattern of racketeering activity and that certain of his property was used in furtherance of such unlawful activity, the defendant\u2019s property is subject to forfeiture in accordance with the Act. Therefore, we find no error and affirm the trial court\u2019s order of forfeiture and disposition.\nFinally, although no constitutional question was preserved for review, we are constrained to express our concern that in enacting N.C. Gen. Stat. \u00a7 75D-3(c)(2), the General Assembly may have unlawfully delegated its power to make laws to the Congress of the United States.\nAffirmed.\nJudges ORR and GREENE concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General W. Dale Talbert, for the State.", "Robert K. Leonard for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA ex rel. Lacy H. Thornburg, Attorney General, Plaintiff v. LOT AND BUILDINGS at 800 Waughtown St., Tax Block 741, Lot 101A, Winston-Salem, N.C., being property described in Deed Book 1504, Page 1059, Forsyth County Registry, Deeded to Edward Fred Bowman; plus U.S. Currency in the amount of $37,132.05; ONE (1) 1988 CHEVROLET PICK-UP TRUCK, Vehicle Identification Number 1GCDC14K4JE108426; and SEVERAL GAMBLING DEVICES, Including Two (2) Electronic Poker Machines and Assorted Lottery Tickets, Gambling Stamps, Betting Sheets, and Associated Items, Defendants\nNo. 9121SC742\n(Filed 6 October 1992)\n1. Penalties \u00a7 1 (NCI3d)\u2014 RICO forfeiture proceeding-jurisdiction of superior court\nThe superior court had jurisdiction over a RICO forfeiture proceeding even though it did not have jurisdiction over the underlying crimes (misdemeanor gambling charges) which were the basis of the violation of the RICO Act, since the civil forfeiture dispute at the trial level was a \u201cjusticiable\u201d matter over which both district and superior courts had jurisdiction. N.C.G.S. \u00a7 7A-240.\nAm Jur 2d, Extortion, Blackmail, and Threats \u00a7 251.\n2. Gambling \u00a7 3 (NCI4th); Penalties \u00a7 1 (NCI3d|\u2014 misdemeanor gambling offenses \u2014predicate acts of racketeering activity sufficient for RICO forfeiture proceeding\nThe trial court did not err in finding that defendant\u2019s misdemeanor gambling convictions constituted predicate acts of racketeering activity sufficient to subject his property to forfeiture under the RICO Act, since the alternative definition of racketeering activity found in N.C.G.S. \u00a7 75D-3(c)(2), which incorporates by reference offenses listed in Title 18 of the U. S. Code \u00a7 1961(1), lists \u201cany act' or threat involving . . . gambling . . . which is chargeable under State law and punishable by imprisonment for more than one year\u201d; defendant was convicted of gambling in houses of public entertainment, operating or possessing gambling devices, and selling or possessing numbers tickets, all in violation of North Carolina statutes; and each of the gambling offenses was chargeable as a general misdemeanor punishable by up to two years imprisonment.\nAm Jur 2d, Extortion, Blackmail, and Threats \u00a7\u00a7 244, 245.\nGambling \u00a7\u00a7 31 et seq.\nCivil action for damages under state Racketeer Influenced and Corrupt Organization Acts (RICO) for losses from racketeering activity. 62 ALR4th 654.\n3. Penalties \u00a7 1 (NCI3d)\u2014 RICO forfeiture proceeding \u2014 criminal conduct on property for which forfeiture sought\nThe evidence was sufficient to support a forfeiture of defendant\u2019s property in a proceeding under the RICO Act where the evidence revealed that each incident of criminal conduct took place on the real property for which forfeiture was sought.\nAm Jur 2d, Extortion, Blackmail, and Threats \u00a7 176.\nCivil Action for damages under state Racketeer Influenced and Corrupt Organizations Acts (RICO) for losses from racketeering activity. 62 ALR4th 654.\n4. Penalties \u00a7 1 (NCI3d)\u2014 gambling convictions \u2014pattern of racketeering activity \u2014 sufficiency of evidence\nThere was no merit to defendant\u2019s contention that, even if his property was used in the course of racketeering activity, his convictions did not amount to a \u201cpattern of racketeering activity\u201d so as to warrant forfeiture under N.C.G.S. \u00a7 75D-5(a), since defendant engaged in at least two incidents of racketeering activity which had the same or similar purposes and methods of commission; these incidents were not isolated or unrelated; they occurred after October 1, 1986; and at least one incident occurred within a four-year period of the other.\nAm Jur 2d, Extortion, Blackmail, and Threats \u00a7 246.\nCivil action for damages under state Racketeer Influenced and Corrupt Organizations Acts (RICO) for losses from racketeering activity. 62 ALR4th 654.\nAPPEAL by, defendant Edward Bowman from judgment entered 14 March 1991 in FORSYTH County Superior Court by Judge James A. Beaty, Jr. Heard in the Court of Appeals 25 August 1992.\nPlaintiff, State of North Carolina, ex rel. Lacy H. Thornburg, Attorney General, instituted a Racketeer Influenced and Corrupt Organizations (RICO) forfeiture proceeding pursuant to Chapter 75D of the North Carolina General Statutes, seeking forfeiture of certain real and personal property in which defendant Edward Bowman claimed an interest.. Defendant filed a motion to dismiss the State\u2019s action, asserting that the superior court lacked subject matter jurisdiction to adjudicate the case and that the complaint failed to state a claim upon which relief could be granted under Rule 12(b) of the Rules of Civil Procedure. The motion was subsequently denied.\nWe note at the outset that the dispositive facts in this case are uncontroverted. Prior to this action, defendant Bowman entered guilty pleas to several misdemeanor gambling charges in Forsyth County District Court. That court accepted the pleas and entered judgment against the defendant. None of the convictions were appealed. Based on these misdemeanor convictions, the State, in a separate civil proceeding, filed a motion for partial summary judgment for forfeiture of certain of defendant\u2019s real and personal property. The trial court granted the State\u2019s motion and entered a final order of forfeiture and disposition in accordance therewith. The State voluntarily dismissed the remaining personal property claims. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General W. Dale Talbert, for the State.\nRobert K. Leonard for defendant-appellant." }, "file_name": "0559-01", "first_page_order": 587, "last_page_order": 594 }