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If Walker County, Ga., District Attorney Herbert E. “Buzz” Franklin Jr. wants to levy more than misdemeanor charges against Tri-State crematorium operator Ray Brent Marsh, he should look to the state RICO statute, some legal experts say. Marsh is accused of 16 counts of theft by deception in connection with the investigation of hundreds of bodies discovered dumped and rotting on the grounds of the crematory. Before Walker Superior Court Judge William R. Hill Jr. issued a gag order in the case Thursday, investigators reported that the number of bodies found on the site was approaching 300 and could go much higher. At a hearing Friday, Hill took Marsh’s motion for bond under advisement without ruling. But theft by deception only is a felony if the value stolen exceeds $500. So prosecutors might be left with an avalanche of misdemeanor charges; Marsh reportedly charged about $200 for individual cremations. Also, the statute of limitations on theft by deception is five years, and investigators have said some of the bodies may have been dumped as long ago as 20 years. ‘FAR BEYOND’ FINANCES Atlanta-based Bondurant, Mixson & Elmore partner John E. Floyd, author of “RICO State by State,” says that taken individually, the charges are not especially serious. But collectively, he says, the acts add up to a significant amount of money, and a “shocking” and “offensive” crime that may well merit prosecution under the RICO statute. “Here the impact goes far beyond the financial circumstances,” he says. The Georgia RICO statute allows prosecution for a “pattern of racketeering activity,” which it defines as “engaging in at least two acts of racketeering activity in furtherance of one or more incidents, schemes, or transactions that have the same or similar intents, results, … victims, or methods of commission.” (O.C.G.A. � 16-14-3). A conviction under the statute is a felony carrying a possible 20-year sentence. The list of possible “predicate acts” that qualify for prosecution under the RICO statute includes theft by deception. Several hundred counts of even misdemeanor theft by deception would qualify, Floyd says. “That should suffice,” he says. Gwinnett County District Attorney Daniel J. Porter says going after Marsh, who took over Tri-State operations from his ailing father in the mid-1990s, on 300 misdemeanor charges might work — in theory. “Three hundred misdemeanors could give him 300 years in prison,” he says. “Though, in practical terms, probably not.” Porter agrees that RICO might be the more practical way to levy serious charges against Marsh. “If you do it 300 times, that’s RICO,” he says. The five-year statute of limitations on RICO charges doesn’t being running until the last predicate act is committed. CIVIL REMEDIES The RICO statute offers some intriguing civil remedies to the families of the dead, Porter and Floyd say. Among those remedies are dissolution of Tri-State and seizure of its assets, triple damages and attorney fees for the victims, and a permanent injunction barring Marsh, 28, from working in the funeral industry. “For a youthful defendant of working age,” this last provision is especially important, Floyd says. The Georgia attorney general’s office is unable to comment on the possibility of pursuing RICO charges because of the judge’s gag order. Franklin and Marsh’s lawyer, McCraken “Ken” Poston of Ringgold, also did not return calls. Floyd and Porter also say that a federal RICO charge is possible. Many of the bodies intended for cremation at Tri-State came from Tennessee. The predicate acts in any federal case probably would have to rely on mail fraud or wire fraud, and the federal RICO statute has more stringent requirements than the Georgia statute, Floyd says. ‘RIDICULOUS CHARGE’ Criminal defense lawyer Jerome J. Froelich Jr., who represented Atlanta police officer John D. Redlinger in the recent Gold Club case, says using the RICO statute against Marsh is a bad idea. “That’s a ridiculous charge to bring in a case like this,” says Froelich, of McKenney & Froelich in Atlanta. “RICO was meant for organized crime.” Prosecutors should use the statutes that clearly apply to what they think Marsh did, Froelich says, not go in search of the most devastating legal vehicle they can dream up. “They can bring as many fraud cases as they want,” he says. “They’ve got fraud cases; they should bring fraud cases.” Too often, he says, prosecutors try to apply RICO to defendants who have nothing to do with organized crime. “If prosecutors keep misusing RICO like this, they’re going to lose that tool,” he says. But Floyd says RICO is designed to encompass complicated offenses with multiple separate acts — it’s not confined to organized crime cases. The Tri-State dumping ground seems to qualify, he says. “You’re not talking about somebody who shoplifted two radios,” he says. “In a case like that RICO would probably be unwarranted.”

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