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Under the "judicial admission" doctrine, some issues can be withdrawn from consideration in a case.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:
