Predicate

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In a legal sense, the term predicate means to base something, such as a fact, statement, or action, on another thing. For instance, a person may agree to give a crate of baseball bats to the local little league, predicated on (or based on) a parent’s withdrawal of a lawsuit. The term is also used in criminal law, as a “predicate offense” is one that is part of a larger criminal offense or scheme. To explore this concept, consider the following predicate definition.

Definition of Predicate

Verb

  1. To base something on something else.

Origin

1400-1450       Late Middle English praedicātum (to publicly declare or assert)

What is Predicate

Predicate is the act of basing something – a decision, action, or promise, perhaps – upon something else. Examples of predicate actions include:

  • The Crusades of old were a series of wars predicated on the expansion of Christian beliefs.
  • A jury’s verdict is predicated on the evidence presented at trial.
  • The police department’s public affairs officer had no first-hand knowledge about the case; her statement was predicated on information provided by the detectives.
  • Lorenzo’s decision to move to Hawaii was predicated on his belief that he had a new job there.

If something is predicated on something else, it is based on that thing, or occurs because of that thing. In criminal law, predicate relates to any crime that is part of a series of crimes, one that is committed in furtherance of the larger crime. In such a case, an example of a predicate offense somehow laid the groundwork for the current offense.

Predicate Offense

In criminal law, a predicate offense, also referred to as a “predicate act,” is a crime that provides the resources for, or contains some of the elements of, a more serious crime. A predicate offense is committed for the purpose of committing the greater crime. If someone is convicted of a serious crime – especially those requiring a complex plan and resources – predicate offenses may serve to enhance his sentence.

The Predicate Act Doctrine came as a result of the Racketeer Influenced and Corrupt Organizations Act, commonly known as “RICO.” The RICO Act targeted the rampant racketeering of the 1970s, allowing an individual directing these activities to be personally charged and tried for the crimes of the group. For this to occur, it is necessary to establish a pattern of crimes that lead up to, or comprise the larger crime. Predicate acts of RICO include such things as:

Crimes or actions may be considered predicate acts to a larger crime if they are related to, pave the way for, or have the same or similar purpose of the larger crime. As an example, predicate offenses are actions that include the same participants, the same victims (or victim group), strive toward the same results – in short, these are acts that are interrelated, and not isolated actions.

In modern times, the U.S. most often puts the RICO Act, and predicate offenses to use in the fight against terrorism. In this, the authorities are targeting the financial structure of terrorist groups, such as money laundering. This set of laws, relying on predicate offenses, is also used heavily to prosecute drug kingpins and heads of other large criminal organizations.

Using Predicate Offenses in Plea Bargains

The right to a trial by one’s peers is a cornerstone of the U.S. legal system. This constitutionally guaranteed right, found in the Sixth Amendment, helps ensure people cannot simply be accused of having committed a crime, then shut away by government officials or aristocrats. In an overburdened criminal justice system, however, more and more defendants are accepting a deal offered by the prosecutor’s office, known as a “plea bargain.”

Plea bargains offer defendants an opportunity to get a lighter sentence in exchange for pleading guilty to only some of the charges, or to reduced charges. This keeps the case out of the courtroom, freeing the court up to hear other cases. According to the U.S. Bureau of Justice Assistance (“BJA”), approximately 95% of federal and state criminal cases are resolved by plea bargaining.

Many have asked the question of what could possibly induce so many accused individuals to enter a plea of guilty (or no contest), tarnishing their reputations, and being labeled as felons for the rest of their lives. In many cases, prosecutors have strong-armed defendants, talking about predicate offenses, and threatening them with sentences that are so out of line they can only be described as panic-inducing.

What is offered to defendants to coerce them into accepting a plea bargain is a lighter sentence, such as fewer years in prison, or even probation instead of incarceration. This offer, however, is coupled with a promise to seek the maximum sentence should the defendant choose to exercise his right to trial by his peers. Prosecutors often turn to listing the defendant’s past deeds, hinting that the list can be used as predicate offenses, shoring up their threats of harsh punishments.

The law allowing the government to use prior criminal activity to enhance sentencing was intended to target drug trafficking and other organized crime. In recent decades, its use in pressuring defendants into accepting a plea bargain has risen in frequency to the point it is considered normal by many legal professionals and criminals alike.

Predicate Example in Money Laundering

Money laundering is the process of running money and other assets gained through criminal activity, referred to as “dirty money,” through legitimate business, turning it into “clean money.” In this way, the criminals attempt to disguise the source of their wealth. For instance, if Nicholas, who comes from a relatively poor community and family, is seen to suddenly rise in financial stature with no logical source of such income, it would be suspicious. Such suspicions draw the attention of the authorities – something no criminal desires.

Money laundering is a complex crime – one which relies on the authorities being able to track down and prove a set of predicate offenses. Methods used by terrorist organizations to launder money involve disguising the source of the proceeds, moving the proceeds someplace they won’t likely be noticed, or changing the form of the proceeds. The goal of this complex action is to get the money back to the person or group that originally generated it, without leaving a trail back to their criminal activities.

The actions of a person or organization to conceal or convert proceeds of criminal activity become the primary offense of money laundering. The crimes that produced the funds in the first place are predicate offenses. Some of these offenses may be prosecuted on their own merit, but many are used to enhance the charges or sentencing of individuals convicted of the larger crime.

Predicate Offenses in Securities Fraud Case

In the 1980s, American financier Michael Milken gained a reputation as the “Junk Bond King.” Through securities fraud and tax evasion, Milken padded his bank accounts with over $1 billion dollars in a four-year period before authorities caught up with him. In 1989, Milken was indicted by a federal grand jury on nearly 100 counts of racketeering and securities fraud.

The racketeering charge under RICO was propped up by a long string of predicate offenses. In the U.S., this was the first time anyone with no ties to organized crime was charged under the RICO Act.

In this example of predicate offenses proving a larger case, Milken took a plea agreement in which he would plead guilty to six felony counts of tax violations and securities fraud. These included:

  • Selling stock without required disclosures
  • Sending confirmation slips through the mail that did not disclose that he added his commission to the price
  • Aiding and abetting the filing of an inaccurate statement with the SEC
  • Aiding and abetting the filing of inaccurate broker-dealer reports with the SEC
  • Agreeing to sell securities to a customer, buy them back at a loss to the customer, in exchange for a promise to make up for the losses with a future profitable transaction
  • Conspiracy to commit these crimes

For his part, Milken agreed to pay fines amounting to $200 million, and to repay $400 million to investors caught in his scheme. Even taking into account the SEC’s imposition of a lifetime ban from the securities industry, Milken’s punishment seemed a pittance to many people, as it didn’t even dent his billion dollars in assets.

Although he tearfully told the court he was sorry for his crimes, as he asked for leniency, the judge wasn’t buying it. He made the point that Milken misused his position of trust to commit “serious crimes warranting serious punishment and the discomfort of being removed from society.”

Citing evidence that Milken had committed more troubling criminal acts, beyond those for which he was being sentenced, including obstruction of justice, the judge handed down a sentence of 10 years in federal prison, followed by 3 years of probation, during which he was to perform 1,800 hours of community service each year.

After spending only 2 years of his 10-year sentence, Michael Milken faced another judge, asking that his sentence be reduced. This request was supported by prosecutors, as Milken had provided them with additional information on securities fraud and other crimes committed by others.

Related Legal Terms and Issues

  • Aiding and Abetting – The act of assisting someone, or to be an accomplice, in the commission of a crime.
  • Conspiracy – A secret or surreptitious plan, between two or more people, to do something harmful or illegal.
  • Leniency – Being merciful, tolerant, or permissive; the lessening of a punishment or sentence.
  • Racketeering – A systematic enterprise of illegal activities for profit or other gain.
  • Securities Fraud – The practice of deceiving investors in order to persuade them to buy or sell stocks or other commodities, usually at a loss.