Last week, I blogged about how Boeing had confessed to committing a deadly conspiracy crime connected with the two 737 MAX crashes and should now plead guilty to the charge pending against it. In that earlier post, I argued that Boeing's concessions in a statement of facts (connected with an earlier deferred prosecution agreement) constituted a "confession" that would greatly simplify the Government's task at trial. An alert reader has passed along an interesting argument that I failed to consider … which further strengthens my position.
Under the "judicial admission" doctrine, some issues can be withdrawn from consideration in a case. As the Tenth Circuit recently summarized (United States v. Gallegos, 111 F.4th 1068, 1076 (10th Cir. 2024)), a judicial admission is an "express waiver made … by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact." Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 592 (2013) (quoting 9 J. Wigmore, Evidence § 2588 (J. Chadbourn rev. 1981)). Such admissions "include 'formal concessions in the pleadings' and 'are not evidence at all but rather have the effect of withdrawing a fact from contention.'" Wells Fargo Bank, N.A. v. Mesh Suture, Inc., 31 F.4th 1300, 1313 (10th Cir. 2022) (quoting Keller v. United States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995)). "Judicial admissions are not just any statements made before the court," but rather "formal, deliberate declarations which a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters or of facts about which there is no real dispute." United States v. E.F., 920 F.3d 682, 688 (10th Cir. 2019) (quoting U.S. Energy Corp. v. Nukem, Inc., 400 F.3d 822, 833 n.4 (10th Cir. 2005)).
Did Boeing's agreements in its deferred prosecution agreement (DPA) constitute "judicial admissions"? It seems to me that they did. In its DPA, Boeing formally agreed that all 54 paragraphs in the statement of facts accompanying the DPA were true:
The Company admits, accepts, and acknowledges that it is responsible under United
States law for the acts of its officers, directors, employees, and agents as charged in the Information, and as set forth in the Statement of Facts, and that the allegations described in the Information and the facts described in the Statement of Facts are true and accurate. The Company agrees that, effective as of the date it signs this Agreement, in any prosecution that is deferred by this Agreement, it will not dispute the Statement of Facts set forth in this Agreement, and, in any such prosecution, the Statement of Facts shall be admissible as: (a) substantive evidence offered by the government in its case-in-chief and rebuttal case; (b) impeachment evidence offered by the government on cross-examination; and (c) evidence at any sentencing hearing or other hearing. In addition, in connection therewith, the Company agrees not to assert any claim under the United States Constitution, Rule 410 of the Federal Rules of Evidence, Rule 11(f) of the Federal Rules of Criminal Procedure, Section 1B1.1(a) of the United States Sentencing Guidelines ("USSG" or "Sentencing Guidelines"), or any other federal rule that the Statement of Facts should be suppressed or is otherwise inadmissible as evidence in any form.
This specific agreement by Boeing (through its CEO and legal counsel) that the allegations against it were "true and accurate" and that Boeing would "not dispute" any facts in any prosecution deferred by the agreement seems to place this case squarely within the "judicial admission" doctrine. And, thus, prosecuting Boeing for its deadly conspiracy crime connected with the 737 MAX crashes is even more of a slam dunk than I suggested earlier.
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