Is accepting a deferred prosecution agreement an admission of guilt? In a January 7, 2021 press release, &quot;Boeing Charged with 737 Max Fraud Conspiracy and Agrees to Pay over $2.5 Billion,&quot; the U.S. Department of Justice says, The Boeing Company (Boeing) has entered into an agreement with the Department of Justice to resolve a criminal charge related to a conspiracy to defraud the Federal Aviation Administration’s Aircraft Evaluation Group (FAA AEG) in connection with the FAA AEG’s evaluation of Boeing’s 737 MAX airplane. Boeing, a U.S.-based multinational corporation that designs, manufactures, and sells commercial airplanes to airlines worldwide, entered into a deferred prosecution agreement (DPA) in connection with a criminal information filed today in the Northern District of Texas. The criminal information charges the company with one count of conspiracy to defraud the United States. Under the terms of the DPA, Boeing will pay a total criminal monetary amount of over $2.5 billion, composed of a criminal monetary penalty of $243.6 million, compensation payments of [etc., making up the total]. ... “Today's deferred prosecution agreement holds Boeing and its employees accountable for their lack of candor with the FAA regarding MCAS,” said Special Agent in Charge Emmerson Buie Jr. of the FBI’s Chicago Field Office. Does this constitute an admission of guilt on the part of Boeing? Can we actually say that they are &quot;guilty of fraud&quot;? Or is there something more subtle going on here? If it is not an admission of guilt, but is not treated as complete innocence (outside the whatever the DFA requires), what difference could this make to anything else the company does or gets involved in (such as, e.g., other lawsuits)?
Entering into a deferred prosecution agreement is not (formally) an admission of guilt, nor does it result in a finding of guilt. It is instead more like pretrial probation. The defendant agrees to abide by certain terms, and the government agrees not to prosecute the case at all, unless the defendant violates the terms.
Suborning perjury is a criminal offense, at the federal level under 18 USC 1622, and is especially bad for a law firm to do. An attorney has a duty to not allow a client to lie in a legal proceeding, so instructing a client to lie is worse. Legally speaking, you are not compelled to turn them in to the (local US) authorities, unless your country has some odd law requiring citizens to report crimes in foreign countries. Two things can possibly come out of forwarding such an email to the authorities. One is that they will gain access to privileged communication, which they may not be able to use against the client. The other is that they will have evidence of the attorney committing a crime, which is not privileged. See Clark v. United States, 289 U.S. 1: There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told. We take no stance on moral questions as to whether you should or should not.
Failing to pay a required tax is both a civil and a criminal offense. In a case like this, the buyer should have known that there was something suspicious going on, and so had a duty to look into things. In any case ignorance is not a legal defense to an accusation of non-payment of a tax properly due. By the way, it is not a question of a court learning something, but of a tax official, The tax official could refer to matter to a prosecutor, who could bring charges and take the matter to court. However, relatively minor tax issues are most often handled as civil matters with a tax penalty or fine being imposed, and even if it were handled as a criminal matter (unusual for a first offense) the Judge would have the option to impose only a fine. The California sales tax rate on autos is currently 7.25%, so the tax due would have been something less than $725. The Californium Sales And Use Tax Law section 6476 specifies a penalty of 6% of the tax due but not paid. However, this applies to: Any person required to make a prepayment pursuant to Section 6471 who fails to make a timely prepayment ... That would normally be the seller. Remember these taxers are normally collected by the seller from the buyer, and the seller, particularly one whose business is such sales, must make regular payments to the state. I have not found a law or regulation specifying a penalty rate for the buyer in such a situation, but it is probably a similar rate. Note that a later section specifies a 10% penalty instead of 6% when the non-payment is negligent or willful. The official page &quot;Sales And Use Tax Regulations&quot; from the California Department of Tax and Fee Administration (CDTFA) summarizes a number of regulations and sections of law, particularly Regulation 1703. It reads in part: (c) (1) (B) Other Late Payments. A penalty of 10 percent of the amount of all unpaid tax shall be added to any tax not paid in whole or in part within the time required by law. (c) (1) (C) Vehicles, Vessels and Aircraft. A purchaser of a vehicle, vessel or aircraft who registers it outside this state for the purpose of evading the payment of sales or use taxes shall be liable for a penalty of 50 percent of any tax determined to be due on the sales price of the vehicle, vessel or aircraft. (c) (3) (A) Negligence or Intentional Disregard. A penalty of 10 percent of the amount of the tax specified in the determination shall be added to deficiency determinations if any part of the deficiency for which the determination is imposed is due to negligence or intentional disregard of the Sales and Use Tax Law or authorized regulations. Generally, a penalty for negligence or intentional disregard should not be added to deficiency determinations associated with the first audit of a taxpayer in the absence of evidence establishing that any bookkeeping and reporting errors cannot be attributed to the taxpayer's good faith and reasonable belief that its bookkeeping and reporting practices were in substantial compliance with the requirements of the Sales and Use Tax Law or authorized regulations. (c) (3) (C) Fraud or Intent to Evade. A penalty of 25 percent of the amount of the tax specified in a deficiency determination shall be added thereto if any part of the deficiency for which the determination is made is due to fraud or intent to evade the Sales and Use Tax Law or authorized regulations. In the case of a determination for failure to file a return, if such failure is due to fraud or an intent to evade the Sales and Use Tax Law or authorized regulations, a penalty of 25 percent of the amount required to be paid, exclusive of penalties, shall be added thereto in addition to the 10 percent penalty for failure to file a return. Fraud or intent to evade shall be established by clear and convincing evidence. (c) (3) (E) (8) Relief from Penalty for Reasonable Cause. If the Board finds that a person's failure to make a timely return, payment, or prepayment, or failure to comply with the provisions of section 6074 of the Revenue and Taxation Code is due to reasonable cause and circumstances beyond the person's control, and occurred notwithstanding the exercise of ordinary care and the absence of willful neglect, the person may be relieved of the penalty provided by sections 6074, 6476, 6477, 6480.4, 6511, 6565, 6591, and 7051.2 of the Revenue and Taxation Code for such failure. Any person seeking to be relieved of the penalty shall file with the Board a statement under penalty of perjury setting forth the facts upon which the claim for relief is based. Section 6592 of the Revenue and Taxation Code, providing for the relief of certain penalties does not apply to the 10 percent penalty imposed for failure to make a timely prepayment under section 6478 of the Revenue and Taxation Code. The page lists contact info for the CDTFA I cannot judge which of these regulations would apply to the case describes in the question -- they are generally aimed at failures by the seller. But it looks as if 10% to 50% of the tax originally due would be a likely amount. Penalties, fines, and jail terms imposed should not depend on citizenship or immigration status t all. Response to PS First of all, the IRS is not a court. Courts are not law enforcement agencies nor prosecutors in the US. Secondly, this is a state tax, not a federal tax, and the IRS will not be concerned. The California tax authorities may be. (They are not courts either.) The page &quot;Tax Guide for Purchasers of Vehicles, Vessels, &amp; Aircraft&quot; from the California Department of Tax and Fee Administration (CDTFA) reads: However, if you purchased a vehicle without completing registration and paying the use tax to the DMV, you must pay the use tax directly to the CDTFA. You can report your purchase of a vehicle and pay the use tax by using the CDTFA's online services and selecting the option to File a Return or Claim an Exemption for a Vehicle, Vessel, Aircraft, or Mobile Home under the Limited Access Functions. Your tax payment is due on or before the last day of the month following the month of purchase. Penalty and interest charges will begin to accrue once the due date has passed.
Fraud wrongful or criminal deception intended to result in financial or personal gain So, you knowingly deceived the US government in order to make a financial gain by not paying the right amount of tax. Sounds like fraud to me. Specific penalties for the IRS are here. Of most relevance is Title 26 USC § 7201 Attempt to evade or defeat tax: Any person who willfully attempts to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof: Shall be imprisoned not more than 5 years Or fined not more than $250,000 for individuals ($500,000 for corporations) Or both, together with the costs of prosecution Note that this is per offence. If you have done it for 6 years that is 6 offences so the maximum you face is 30 years and $1,500,000 plus the costs of prosecution. In practice, how bad can this get? This bad. You need a lawyer now.
Yes. There have been indictments of individuals for failing to pay taxes on fringe benefits, such as the 2019 prosecution related to multiple instances of fraud including failing to report $410,000 of fringe benefits for People's Express, a bankruptcy start up airline. Often executives are prosecuted criminally, but corporations are actually easier to obtain convictions against (for example, corporations do not have protections under the 5th Amendment against self-incrimination). But since civil and criminal fines are hard to distinguish, it is more common to seek civil fines than criminal convictions against corporations, while pursuing criminal penalties against key officers and employees of the corporations. The U.S. Department of Justice has a set of policies (also here) regarding when corporations themselves should be prosecuted criminally that have parallels in state prosecutor's offices. A list of corporate criminal prosecutions in the 1990s (mostly for non-tax violations) can be found here. For example, in 1991, the Georgia Pacific Corporation was convicted of tax evasion and fined $5 million. Tax fraud prosecutions are rare but hardly unprecedented, although large civil penalties are vastly more common. There is nothing terribly new about it either. For example, an academic article on defending criminal tax prosecutions against publicly held companies was published in 1978. Simply stealing money meant for employee fringe benefits or taxes on those benefit is a more commonly prosecuted crime. At the federal level, in 2020, there were 593 tax evasion convictions in the US. In 2019, 848 people were sentenced, and in 2018 — 1,052. 945 prosecutions were recommended for tax crimes in 2020 in the U.S. In 2018, there were 1,050 recommendations. In 2019, the number of recommended prosecutions was 942, and in 2020 — 945. State tax fraud prosecutions are similarly rare but not unprecedented, although the raw number of cases per year is smaller because the federal statistics cover the entire United States, while state tax fraud cases comes from just one of fifty states. Almost all tax code provisions are the subject of fraud prosecutions at some point, and the common bond of the provisions is not the nature of the tax code section violated, but the willfulness of the violation. Detailed breakdowns of tax fraud prosecutions by type of tax code provisions violated are hard to determine, without detailed reviews of court records, because they all fall under the same criminal code sections. Many current federal prosecutions focus on tax fraud related to COVID related tax credits and cryptocurrencies. But federal tax prosecution agencies don't track fringe benefit fraud as a distinct subtype of case, and fringe benefit tax fraud could be variously classified as employment tax fraud, abusive tax schemes, general tax fraud, or corporate fraud.
This is a civil case in Texas. See Texas Rules of Civil Procedure, Rule 193.3(d) and guidance. In the current PDF May 1 2022 those are on pages 199 and 121 respectively and I reproduce them below. My understanding is that defense counsel (D) could have asserted privilege when Plaintiffs' counsel (P) originally told him about the link. In doing so, D would have identified the inadvertently produced material and the privilege asserted. Then P would be obliged to promptly return (or delete as it's digital) that material and any copies. Inevitably in this case P would object to the claim of privilege over any material potentially or apparently 'responsive' to discovery (e.g. a folder called &quot;digital copy of defendant's phone&quot; or texts mentioning keywords). The judge would hear from both parties and make a ruling on the material. In reality, D did not do that. Also, D made no contemporaneous objections to P's request to admit particular material in court (note P did not request the admission of the entire trove, only particular pieces of it). Instead, the day after the &quot;Perry Mason moment&quot;, D filed an 'emergency motion of protection' and a request for a mistrial. The judge denied both. D asked for another ten days to review the material. The judge said no to ten days but said D could have a D a day to make a start and then they could discuss whether more were needed. She said she would not make a blanket protection order over the entire trove without knowledge of what was in it. hearing here https://www.youtube.com/watch?v=dKbAmNwbiMk Incidentally, P claimed there was an earlier inadvertent production of some other material and in relation to that material rule 193.3(d) was followed by both parties. (from 7mins in that clip.) Texas Rules of Civil Procedure 193.3(d) Privilege not waived by production. A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if - within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made - the producing party amends the response, identifying the material or information produced and stating the privilege asserted. If the producing party thus amends the response to assert a privilege, any party who has obtained the specific material or information must promptly return the specified material or information and any copies pending any ruling by the court denying the privilege. (guidance) Rule 193.3(d) is a new provision that allows a party to assert a claim of privilege to material or information produced inadvertently without intending to waive the privilege. The provision is commonly used in complex cases to reduce costs and risks in large document Page 122 productions. The focus is on the intent to waive the privilege, not the intent to produce the material or information. A party who fails to diligently screen documents before producing them does not waive a claim of privilege. This rule is thus broader than Tex. R. Evid. 511 and overturns Granada Corp. v. First Court of Appeals, 844 S.W.2d 223 (Tex. 1992), to the extent the two conflict. The ten-day period (which may be shortened by the court) allowed for an amended response does not run from the production of the material or information but from the party’s first awareness of the mistake. To avoid complications at trial, a party may identify prior to trial the documents intended to be offered, thereby triggering the obligation to assert any overlooked privilege under this rule. A trial court may also order this procedure. This rule imposes no duty to supplement or amend deposition testimony. The only duty to supplement deposition testimony is provided in Rule 195.6. Any party can request a hearing in which the court will resolve issues brought up in objections or withholding statements. The party seeking to avoid discovery has the burden of proving the objection or privilege.
What misrepresentation? Alice said she buried the money there. That the money is not there now is not evidence that she didn’t. it’s evidence that something happened to it between then and now. However, let’s not let the flawed example obscure the question. Let’s pretend instead that Alice said the money was there now. Misrepresentation Pre-contractural false statements of fact by one party that induce the other to enter the contract give a cause of action in contract law; they are not a tort. There are torts that are similar like deceit and negligent misstatement. The link provided is talking about fraud - the criminal equivalent of deceit (and the word fraud is often used when technically it’s talking about the tort of deceit). The out-of-pocket rule applies to torts so Bob can recover his losses. Personal time invested is not an out-of-pocket loss as it represents an opportunity cost, so, Bob cannot recover what he or his excavator might have earned instead. He can recover his fuel costs and depreciation on the excavator as those are “real” out of pocket expenses. If Bob had been an employee of a plaintiff company, they could recover his wages but not what they might have sold his time for. That’s just how it is with torts. Misrepresentation is a different beast. It’s a contractural claim so the damages are the “benefit of the bargain”, in this case $500. However, this is only available if the misrepresentation was fraudulent (Alice knew the money wasn’t there), Alice had no reasonable grounds for believing the statement to be true, or at the court’s discretion. Further Bob must prove that it was this statement that caused him to enter the contract and that he would not have entered it otherwise. Alice’s statement may give Bob more than one cause of action and it’s up to him which he chooses to pursue. If he spent less than $500 on fuel he stands to get more with a misrepresentation claim but if his out of pockets are more than $500 he’s better off with a negligent misstatement claim. In either case, these are tough causes to prove.
Here is a link to the relevant Texas Statute: Title 7, Subtitle C, Chapter 545, Subchapter A: Sec. 545.351. MAXIMUM SPEED REQUIREMENT. (a) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. Combine that with: Sec. 545.352. PRIMA FACIE SPEED LIMITS. (a) A speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful. This section mentions, as an example, among other points: (2) except as provided by Subdivision (4), 70 miles per hour on a highway numbered by this state or the United States outside an urban district, including a farm-to-market or ranch-to-market road; What this means is that if you are driving over 70 miles per hour on a type of highway mentioned in (2) above then you are, by legal definition, driving at a speed that is greater than is reasonable and prudent. When you are cited for speeding you are not charged for driving at a specific speed in an area posted at another speed. You are cited for violating a broader law, such as in Texas, driving in an unreasonable or imprudent manner. The mention of the speed is merely a recordation of the facts that support the state's case against you. Let's take the proposal to demonstrate the speed is too low to its logical conclusion. You plead not guilty and it comes out during testimony that you weren't driving 80 but really 85. The judge will still find you guilty of the underlying charge as the facts in the case still support that finding. I have personally witnessed mistakes in tickets result in dismissal. Those mistakes have, however, been related to other facts about the case though: time of day, date of offense, etc. I've also witnessed people attempt to claim a lower but still illegal speed. For example, "I wasn't going 85 I was only going 80." These resulted in findings of guilt.