Judge Brian Rickman Georgia Court of Appeals Judge Brian Rickman, Georgia Court of Appeals (Photo: John Disney/ ALM)

The Georgia Court of Appeals has upheld a RICO conviction for a man accused of having a romance with a woman and helping her steal $800,000 from her employer, using the money to pay bills and take vacations to Jamaica, Alaska, San Francisco and New York.

In a trial before Cobb County Superior Court Judge Reuben Green, a jury convicted Robert Whaley on one count of violating Georgia’s Racketeer Influenced and Corrupt Organizations Act for “acquiring money and property through a pattern of racketeering activity,” Judge Brian Rickman wrote for a panel that included Presiding Judge John Ellington and Judge Gary Andrews.

Whaley appealed, contending the evidence was insufficient, the RICO prosecution was too late, the judge made a mistake in allowing prosecutors to present evidence of similar acts and his trial lawyer was ineffective.

“We find no error and affirm,” Rickman said.

Allowing evidence of similar acts was appropriate because it related to motive, Rickman said—“the reason that nudges the will and prods the mind to indulge in the criminal intent.”

Allegations of his defense lawyer’s poor trial performance were irrelevant, the panel ruled. “Whaley also asserts that his trial counsel rendered ineffective assistance for failing to timely raise the proper objection to the extrinsic act evidence,” Rickman wrote. “In order to succeed on his claim for ineffective assistance of counsel, however, Whaley must establish both that his trial court’s performance was deficient, and that the deficiency prejudiced his defense; the failure to show either prong is fatal to his claim.”

Ashleigh Merchant of the Merchant Law Firm in Marietta defended Whaley on appeal.

“We were disappointed that the court did not agree with us that the prosecution was time-barred and that there was insufficient evidence against our client, Robert Whaley,” Merchant said Tuesday. “We felt strongly that Mr. Whaley was a pawn in his co-defendant’s criminal scheme and lacked the criminal knowledge required to be convicted of this crime.”

The co-defendant, Sharron Rice, pleaded guilty to the charges of stealing from her employer, DEL Development Corporation, where she was an accounts payable manager and eventually an assistant comptroller. Her salary range was $42,000 to $54,000. She resigned the Monday after her boss announced he was ordering an audit because he had noticed questionable activity. He also said he was suspicious of her demeanor when he brought up the subject, Rickman wrote.

Rice issued checks from her employer to a company she and Whaley called Hughes Services. They opened a Hughes account and funneled money from it into different accounts of their own, Rickman said.

Though Whaley lost the appeal, the opinion did seem to give some credence to Merchant’s contention that Whaley had been a pawn. Wrote Rickman: “Rice admitted that the purpose of moving funds stolen from DEL between the various accounts was to ‘wash’ the money, which is a common practice among white collar criminals and is intended to make it difficult to determine the source and/or volume of stolen funds.”

The case is Whaley v. State, No. A17A0848.