Hicks v. State
315 Ga. App. 779
| Ga. Ct. App. | 2012Background
- Hicks was convicted by a DeKalb County jury of engaging in a pattern of racketeering activity under Georgia RICO and nine counts of violating the Georgia Securities Act; post-trial motions denied, appeal filed.
- Indictments alleged Hicks offered and sold securities in 2000–2001, including investment contracts, without proper registration and with fraud in the sale.
- Evidence showed Hicks, as president of DNH Enterprises, Inc., told victims he was a licensed trader, provided promotional booklets, and offered two programs—bank debenture trading and foreign currency trading—promising large profits.
- The Howey test (investment of money, in a common enterprise, with profits to be generated by others) was applied to conclude all three prongs were satisfied and Hicks acted as a dealer receiving commissions.
- Indictment sufficiency challenges to whether a contract or security existed under OCGA 10-5-2(a)(26) were rejected; the conduct amounted to an investment contract under Howey.
- Statute-of-limitations issue: after an indictment in 2005 and a nolle prosequi in 2007, a second indictment was filed within six months, which the court held did not violate the statute because of the six-month extension under OCGA 17-3-3.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for an investment contract | Hicks argues no valid contract or security existed under OCGA 10-5-2(a)(26). | Hicks asserts the booklets do not meet security definitions and there was no evidence of personal receipt of funds. | Howey elements satisfied; record supported investment contract finding. |
| Validity of indictment under statute of limitations | Re-indictment after nolle prosequi exceeded limitations. | Savings provision extended period; re-indictment timely. | Plea in bar denied; re-indictment within six months proper. |
| Ineffective assistance for consenting to nolle prosequi | Counsel failed to press demurrer, enabling nolle prosequi. | Counsel acted within reasonable strategy; no prejudice. | No reversible error; Strickland prejudice not shown. |
| Mistrial denied based on character evidence; impact of unproven predicate acts | Inclusion of unproven predicate acts improperly suggests guilt. | Indictment readings and cautionary instructions mitigated prejudice. | Discretionary ruling; no abuse of discretion; no reversible error. |
Key Cases Cited
- Securities & Exchange Comm. v. W. J. Howey Co., 328 U.S. 293 (U.S. Supreme Court 1946) (establishes Howey investment-contract test.)
- Securities & Exchange Comm. v. SG Ltd., 265 F.3d 42 (1st Cir. 2001) (applies Howey framework to investment schemes.)
- United Housing Found. v. Forman, 421 U.S. 837 (U.S. Supreme Court 1975) (investment contract objective: profits from others’ efforts.)
- Local 875 &c. v. Pollack, 992 F. Supp. 545 (E.D.N.Y. 1998) (recognizes fraud contexts where fictitious securities still actionable.)
- Carlisle v. State, 277 Ga. 99 (Ga. 2003) (savings provision valid for timely re-indictment after nolle prosequi.)
- Sallie v. State, 276 Ga. 506 (Ga. 2003) (extended discussion of indictment timing and limitations.)
- Robinson v. State, 277 Ga. 75 (Ga. 2003) (standard for ineffective-assistance prejudice in Georgia.)
- Hall v. State, 292 Ga. App. 544 (Ga. App. 2008) (trial court’s mistrial/discretionary rulings reviewed for abuse.)
- Davis v. State, 267 Ga. App. 245 (Ga. App. 2004) (ineffective assistance where futile motion conduct not prejudicial.)
- Bethune v. State, 198 Ga. App. 490 (Ga. App. 1991) (state not required to prove all predicates; two suffice.)