Also known as: predicate offense · predicate offences · predicate crime · underlying offense
Written by attorneys — see sources below.
Crimes that serve as the foundation for derivative criminal liability under doctrines such as felony murder or racketeering statutes. The underlying offense supplies the required element that elevates the conduct to the more serious charge.
Priscilla Parks ordered an emergency exit chained shut in violation of a local fire safety ordinance classified as a misdemeanor not malum in se. When a small fire broke out, Pedro Pacheco could not reach the nearest exit and died of smoke inhalation. Because the death was a foreseeable result of the chaining, the misdemeanor qualifies as a predicate offense supporting involuntary manslaughter liability.
Pamela Phillips and Preston Pratt directed a scheme that used mail and wire fraud as repeated acts. Each fraud count functioned as a predicate offense that together formed the pattern of racketeering activity needed to establish the RICO violation against their enterprise.
Elton “Butch” Bryan served as Director of the West Virginia Lottery after his appointment by Governor Gaston Caperton in April 1990. In early 1991 the Lottery began an open bidding process for its $2.8 million advertising contract and formed a seven-member evaluation committee that scored presentations and recommended the Arnold Agency. Bryan and the Governor instead selected the Fahlgren Martin Agency, directed Deputy Director Tamara Gunnoe to surrender the evaluation forms to legal counsel, and instructed her to give false testimony to the Lottery Commission on April 24, 1991, claiming the committee had recommended Fahlgren Martin without numerical scores. When the Department of Administration questioned the absence of quantitative data, Bryan directed Gunnoe to prepare false memoranda of support and continued the misrepresentations until the Purchasing Division approved the contract, which was signed on August 6, 1991, after which the Lottery mailed checks pursuant to its terms. In 1991 and 1992 Bryan also participated in planning a statewide video lottery expansion, directed the drafting of a Request for Proposals that favored Video Lottery Consultants, supplied VLC with an advance copy of the unpublished RFP, and steered the evaluation process toward VLC, although the contract was never awarded after Bryan received a federal grand jury subpoena in January 1993. During the same period Bryan purchased shares of IGT, GTech, and VLC on the basis of confidential nonpublic information obtained in his capacity as Lottery Director. In connection with the ensuing investigation Bryan appeared before a federal grand jury and answered questions about who had participated in drafting the video lottery RFP. A federal jury in Charleston, West Virginia convicted Bryan in September 1993 of two counts of mail fraud, one count of wire fraud, one count of securities fraud, and one count of perjury. The district court sentenced Bryan to 51 months in prison, and Bryan appealed to the Fourth Circuit.
View casePriya Prasad purchased computer equipment under terms that later gave rise to a fraud claim. When the buyer alleged that the seller's conduct also violated a federal statute, the underlying fraud served as the predicate offense that triggered additional civil remedies beyond the contract breach.
Rich and Enza Hill ordered a computer from Gateway 2000 by telephone, providing a credit card number for payment. A box containing the computer along with a list of terms arrived at their residence. The Hills kept the computer more than thirty days before complaining about its components and performance. The Hills filed suit in federal court. They argued that the product's shortcomings make Gateway a racketeer, with mail and wire fraud as the predicate offenses, and sought treble damages under RICO for themselves and a class of all other purchasers. Gateway asked the district court to enforce an arbitration clause contained in the list of terms. The district court refused enforcement, writing that the present record is insufficient to support a finding of a valid arbitration agreement between the parties or that the plaintiffs were given adequate notice of the arbitration clause. Gateway took an immediate appeal. The Hills concede that they noticed the statement of terms but deny reading it closely enough to discover the agreement to arbitrate. The box from Gateway was crammed with software, including an operating system without which the computer was useful only as a boat anchor, as well as many application programs. Gateway's advertisements state that their products come with limited warranties and lifetime support.
View caseAt common law only a small and narrowly defined set of felonies could serve as predicate offenses for felony murder. Modern codes have broadened the category to include a much wider range of felonies as underlying offenses.
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Under the majority common-law rule a misdemeanor that is not malum in se qualifies as a predicate offense for manslaughter only when the death was a foreseeable result of committing the misdemeanor. A minority of courts limit the doctrine to misdemeanors that are malum in se.
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Congress considered but ultimately rejected language that would have restricted predicate offenses to domestic offenses. The enacted text refers to convictions in any court, leaving open whether foreign convictions may qualify as predicate offenses.
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…Footnotes : We express no view on the related question whether a foreign government, based on wire or mail fraud predicate offenses, may bring a civil action under the Racketeer Influenced and Corrupt Organizations Act (RICO) for a scheme to defraud it of taxes. See Attorney General of Canada v. R. J. Reynolds Tobacco…