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What is “Racketeering Activity”?

Racketeering activity includes specifically enumerated federal crimes and certain state offenses which identify “generically” the kind of conduct proscribed by RICO. The federal offenses are described in Title 18, section 1961(1)(B)(C)(E)(F) and (G) to include “any act which is indictable under” the listed federal statutes.  Most of these above offenses are crimes described in Title 18, and consist of a wide range of offenses, including, for example,  bribery of federal government officials, identification fraud, obstruction of justice, extortion, mail and wire fraud, bank fraud, illegal gambling, trafficking in counterfeit labels, money laundering, murder for hire, and terrorism. Federal offenses described as “acts indictable” but are crimes under other titles include, criminal labor law violations and embezzlement of union funds (Title 29 violations), and immigration fraud (Title 8 violations).

Federal Offenses

Federal offenses described in section 1961(1)(D) describe “any offense involving” three categories of federal offenses, i.e., fraud connected with a case under title 11; fraud in the sale of securities; and drug trafficking.  It is significant that these offenses, like state offenses described in Section 1961(1)(A), have been interpreted broadly to include conspiracies and attempts, while the “acts indictable” are limited to violations of only the specific statutory provision. For example, securities fraud is listed as any “offense involving” in Section 1961(1)(D) and would thus include any conspiracy or attempt to commit securities fraud, while mail or wire fraud, which are listed in Section 1961(1)(B) as “acts indictable in violation of section 1341 and 1343” would be limited to attempts, as conspiracy is not expressly included within the terms of the listed statutory offenses.

State Offenses

State offenses are listed in Section 1961(1)(A) to include “any act or threat involving” the following crimes- murder, kidnaping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, and narcotics trafficking, which are chargeable under State law and punishable by imprisonment for more than one year. Because these crimes are described as “acts or threats involving,” attempts, conspiracies, and solicitations to commit any of these offenses can be charged.

Importantly, because Section 1961(1)(A) does not identify specific state statutes that may provide the basis for a RICO predicate act, the state offenses have been interpreted to identify “generically” the kind of conduct proscribed by RICO. Therefore, a state statutory offense may constitute a proper RICO predicate under Section 1961(1)(A) provided it substantially conforms to the essential elements under the prevailing definition of the offense when RICO was enacted in 1970. Thus, the state statute used as a predicate need not use the same labels or titles as the listed predicate offenses, but still may be an offense as described in Section 1961(1)(A). For example, a state statute which is entitled something like “blackmail” or “interference with rights by threats or violence” may be generically equivalent to the listed state offense of extortion if such statute proscribes an offense which contains the essential elements of what is “generically” extortion.  Thus, that state statute, or parts of it, may be a RICO predicate offense. Another example may be a state statute which proscribes what is “generically” bribery (intent to influence, quid pro quo), but goes by a different name, such as ‘payments to officials to influence conduct.” Such a statute could thus be a proper state predicate crime, provided it is a felony.

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