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A Crime Victims' Rights Act Challenge to the Boeing 737 MAX Crashes Deferred Prosecution Agreement

My filings yesterday on behalf of the fifteen families who lost loved ones in the Boeing 737 MAX crashes explains why the Justice Department could not keep victims' families in the dark when it negotiated its immunity deal with Boeing.


Yesterday I filed three motions challenging the Justice Department's secret negotiation of a deferred prosecution agreement (DPA) with Boeing in connection with the two Boeing 737 MAX crashes. My three motions--filed on behalf of fifteen families of victims of the crashes--rely on the Crime Victims' Rights Act (CVRA), which requires the Department to extend to victims the "reasonable right to confer" with prosecutors in a case.  The introduction to my first motion explains why the Department's covert deal conflicts with the CVRA (some citations omitted):

It is undisputed that for more than two years Defendant Boeing conspired to impair, obstruct, and interfere with the Federal Aviation Administration's evaluation of the safety features of the Boeing 737 MAX aircraft. It knew that reporting the 737 MAX's safety issues to the FAA could cost the company tens of millions of dollars, so Boeing covered them up. The tragic results of Boeing's criminal conspiracy cannot be in doubt: As explained in detail in the DPA's admitted Statement of Facts, Boeing's concealment of safety problems from the FAA directly and proximately produced two horrific plane crashes, killing 346 passengers and crew members.

Against that backdrop, one would assume that the Government would have prioritized conferring with the 346 victims' families about its investigation and ultimate prosecution in this case. And yet, during its extended investigation into Boeing's crimes, far from conferring with the families, the Government chose to hide what it was doing. Rather than reach out to grieving crime victims' families, the Government secretly devised a favorable deferred prosecution agreement with Boeing. But the Government did not just conceal its investigation from the families. The Government also affirmatively misled many victims by denying that any ongoing criminal investigation into Boeing even existed—as it collaborated with Boeing to resolve that investigation. What is more, mere months after the DPA was executed and filed with this Court, one of the Government's lead attorneys who approved the agreement joined the lead law firm for Boeing and specifically the very legal team that represented Boeing in this criminal case.

When the Government concealed its negotiations from the families of Boeing's victims, it violated the Crime Victims' Rights Act. Congress enacted the CVRA because it found that, in case after case, victims "were kept in the dark by prosecutors too busy to care . . . and by a court system that simply did not have a place for them." 150 CONG REC. 7296 (Apr. 22, 2004) (colloquy by Sens. Feinstein and Kyl). The Act extends to victims the "reasonable right to confer" with attorneys for the Government in the case. 18 U.S.C § 3771(a)(5). By proceeding in secrecy and with deceit, the Government ignored binding Fifth Circuit precedent that, in enacting the CVRA, "Congress made the policy decision—which [courts] are bound to enforce—that the victims have a right to inform the plea negotiation process by conferring with prosecutors." In re Dean, 527 F.3d 391, 395 (5th Cir. 2008) (emphasis added). And victims have that right "before a plea agreement is reached." The act also guarantees victims' families' rights to "timely notice" of the DPA. See 18 U.S.C. § 3771(a)(9). And the CVRA promises victims that they have the right to "be treated with fairness and with respect for the victim's dignity." 18 U.S.C. § 3771(a)(8). When "a crime victim who is . . . deceased, . . . family members[] or any other persons appointed as suitable by the court, may assume the crime victim's rights under [the CVRA]." 18 U.S.C. § 3771(e)(2)(B).

Here, the Government violated all these rights by making no effort to confer with hundreds of family members who had loved ones taken from them in the two Boeing crashes. Even worse, the Government misled some of the victims' families by falsely telling them that no criminal investigation into Boeing even existed. Whatever else the Government may do under the CVRA, it cannot deceive victims.

The second motion asks for the Court to use its "supervisory power" over the DPA lodged on its docket to provide additional accountability for Boeing. The third motion asks the Court to publicly arraign Boeing on the felony charge (conspiracy) that has been filed against it.

Government's secrecy in negotiating the sweetheart deal with Boeing bears striking parallels to the secrecy that surrounded its negotiations of the sweetheart deal with Jeffrey Epstein, which I have blogged about a number of times.  See here, here, and here. Given the fact that the covert deal with Epstein was so widely condemned, it is hard for me to understand why the Department surreptitiously  cut a similar deal with Boeing here.

I hope that the Department handles this victims' rights motion differently than it handled my challenge to the Epstein plea deal. The Department should forthrightly admit that, in concert with Boeing, it violated the CVRA. The Department should then work with the victims' families to craft an appropriate remedy for that victims' rights violations.

You can read other media coverage of this important crime victims' rights challenge to the Boeing deal here, here, and here.

Note: I've corrected a typo in the first paragraph.

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  1. (Not directed only or primarily at you)

    produced two horrific plane crashes

    Sheesh, drop the adjectives already! What could make a plane crash not horrific? People keep using that adjective for everything, like school shootings, tornadoes, or the Jan 6th rebellious insurrection. Every time I see it, my mind automatically writes off the author as an alarmist trying to win by emotion rather than logic.

    Just stop it.

    1. Then suddenly, there was an explosion.

  2. This looks like a much better case than the Epstein case because there's some action the court can take without violating the defendant's rights. But still, the fact that a right exists on paper does not mean anybody can enforce it. A store in Massachusetts started filing criminal complaints against shoplifters, as is its statutory right. They all got ignored. On appeal the Supreme Judicial Court said the right to file a complaint did not extend beyond the right to present the piece of paper to the court.

    I would be skeptical of calling the crash victims victims of the specific crime charged, except that (according to the first motion) the government and Boeing agreed to consider them victims of the crime.

  3. It's sort of weird to write a long rant about how the government blatantly violated the CVRA, just like it did in the Jeffrey Epstein case, without acknowledging that arguments similar to these lost in the Jeffrey Epstein case.

    1. I was writing a short post. Perhaps I should have addressed the point you raise. It is true that, in the 11th Circuit, I "lost" the Jeffrey Epstein case. But the loss was on the grounds that there was no private cause of action in a free-standing civil case to enforce crime victims rights under the CVRA. The 11th Circuit did not rule that the CVRA was complied with. To the contrary, the 11th Circuit called the Government's behavior "shameful" and said it was not reaching the issue of whether the CVRA had been violated.

  4. Government's secrecy in negotiating the sweetheart deal with Boeing bears striking parallels to the secrecy that surrounded its negotiations of the sweetheart deal with Jeffrey Epstein, which I have blogged about a number of times.

    What are the parallels, exactly?

    1. The main similarity is that, in both cases, a well-connected and powerful defendant negotiated a resolution of potential federal criminal charges, all the while keeping the victims of the crimes in the dark about what was happening.

  5. I'm sure the 'favors' dispensed to the Government from Boeing, were adequate.
    Future cushy sinecures are riding on this!

    1. Boeing is too big to fail. Sixty years ago you could destroy one of the big aerospace companies and the others would fill the gap.

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