The Volokh Conspiracy

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Fifth Circuit to Hear Important Case on Remedies Under the Crime Victims' Rights Act

Tomorrow I will argue that families who lost relatives in the crashes of two Boeing 737 MAX aircraft should be able to confer with prosecutors about prosecuting Boeing for lying to the FAA.


Previously I blogged about my petition to the Fifth Circuit under the Crime Victims' Rights Act (CVRA). My petition argues the families who lost relatives in the crashes of two Boeing 737 MAX crashes should have been afforded their CVRA rights to confer with prosecutors about prosecuting Boeing for its admitted crime of lying to the FAA about the safety of the MAX. The Fifth Circuit has set oral argument on the case, and tomorrow I will argue to the Circuit that it should grant the petition. In this post, I briefly set out the procedural history of the case and link to important briefs on both sides of the case (some citations omitted) for those who are interested.

The case arises out of "the deadliest corporate crime in our nation's history," as the district court described it. During the development of the Boeing 737 MAX, Boeing lied to the FAA about new safety features of the aircraft. As a result of that deception, the FAA did not require pilot training on those new features–ultimately causing the crashes of two of the aircraft and producing the deaths of 346 passengers and crew.

Ultimately, the Justice Department began an investigation into Boeing crimes. And late in 2020 and early 2021, the Department reached a deferred prosecution agreement (DPA) with Boeing. Under the DPA, Boeing admitted that it criminally conspired to deceive the FAA. But, under the DPA, Boeing will not be prosecuted for its crimes in exchange for various concessions.

On January 7, 2021, the DPA was filed in the U.S. District Court for the Northern District of Texas. The 346 families whose relatives were killed in the crashes were not informed about the deal–and never were given an opportunity to confer with prosecutors about it. Instead, they learned about the DPA through social media.

Eleven months later, after I agreed to represent some of the family members pro bono, the families filed a challenge to the DPA. The families argued that the DPA had been entered into in violation of their rights under CVRA, including their right to confer with prosecutors before any deal was finalized. After lengthy proceedings, on October 21, 2022, the district court found that the families represented "crime victims"–that is, their relatives who were killed as a result of Boeing's crimes. And the district court found that the families' CVRA rights, including the right to confer, had been violated. But several months later, on February 9, 2023, the district court concluded that it could not award any remedy to the families to enforce their rights.

I filed a petition for review in the Fifth Circuit, arguing that the district court erred in failing to protect the families' rights. Here is the introduction from my petition:

This case arises out of "the deadliest corporate crime in our nation's history." As the district court found, Boeing's conspiracy to defraud the FAA directly and proximately killed 346 people—leaving behind 346 grieving families. Congress gave those families rights under the Crime Victims' Rights Act. But the Government cared more about protecting Boeing's reputation than the families' rights.  It misled the families as to whether a criminal investigation existed and then secretly cut a deferred prosecution deal without informing the families at all.

Among the rights that Congress protected was a victim's "reasonable right to confer" with prosecutors. 18 U.S.C. § 3771(a)(5). And in 2015, Congress reinforced this right, by mandating that a victim has "[t]he right to be informed in a timely manner of any . . . deferred prosecution agreement." 18 U.S.C. § 3771(a)(9). And Congress has broadly protected crime victims' rights "to be treated with fairness." 18 U.S.C. § 3771(a)(8).

The reason Congress established these rights is straightforward. As this Court explained in In re Dean, 527 F.3d 391 (5th Cir. 2008), "[i]n passing the Act, Congress made the policy decision—which we are bound to enforce—that the victims have a right to inform the plea negotiation process by conferring with prosecutors before a plea agreement is reached." Id. at 395 (emphasis added).

In this case, the victims' families were denied these promised rights—as the district court specifically found. But then, the district did nothing. In doing nothing, the district court failed to discharge its CVRA obligation that it "shall ensure that . . . crime victim[s] are afforded the rights described in [the CVRA]." 18 U.S.C. § 3771(b)(1) (emphasis added). Rather than follow the CVRA's plain language requiring it to "ensure" that the families were afforded their rights, the district court held that meaningless, post hoc "listening sessions" could substitute for the meaningful, pre-charging conferral that Congress mandated.

The district court abdicated its CVRA responsibility to "ensure" that the victims' families were afforded their rights. In the CVRA, Congress promised the families that they would have the opportunity to take part in shaping the scope of Boeing's DPA by conferring with prosecutors before they finalized the DPA. This Court should grant the families' petition and enforce Congress's command.

The Justice Department responded to the petition. Here is an excerpt from its brief:

District courts have significant authority to safeguard and protect crime victims' rights under the CVRA, and that authority will typically allow them to prevent or remedy violations of that statute. But in a few circumstances, Congress and the Constitution have limited the relief a court may grant. And, consistent with general remedial principles, a court must always make a casespecific judgment call about whether a given remedy will in fact cure a CVRA violation.

These principles rightly led the district court here to deny the unprecedented remedies that Petitioners sought. The CVRA nowhere authorizes a court to modify, reject, or supervise a DPA between the government and a criminal defendant. And reading its provisions to authorize that remedy would risk impermissibly interfering with the Executive Branch's constitutional role in deciding when and how to prosecute a criminal defendant, at least where the government acted in good faith when it executed the at-issue DPA.

Boeing also responded to the families' petition. Here is an excerpt from its brief:

[The district court's] decision was plainly correct, and the petition[] for mandamus should be denied. As the district court recognized (and two circuits have held), a DPA is first and foremost an exercise of prosecutorial discretion, and fundamental separation-of-powers principles prohibit a district court from rewriting its terms. The Constitution assigns prosecutorial discretion to the Executive, not the courts, and nothing in the CVRA, the Speedy Trial Act, or anything else empowers a district court to usurp that quintessentially executive function by second-guessing the terms on which the government has agreed not to prosecute. Even if a court had that authority, moreover, it would be inappropriate to remedy the government's CVRA violation by depriving Boeing of the benefit of its bargain after years of performance.

I filed the last brief. Here is an excerpt from my reply brief:

If the parties' position were correct, then the CVRA becomes a dead letter.
Fortunately for the administration of justice, their position is incorrect. Congress
created procedural requirements for conferring with victims that the Government
must follow in resolving criminal cases. Those requirements do not invade
prosecutorial discretion. Those requirements do not regulate the substance of
agreements that the Government might reach. Instead, those requirements regulate
the process by which the Government reaches its agreements.

Here, the families challenge the Government's conceded failure (with Boeing's connivance) to "take Care that the Laws be faithfully executed," U.S Const., art. II, § 3—that is, that the CVRA be faithfully executed. The Government never conferred with the families before reaching its deal. And, as this Court has held, "[i]n passing the Act, Congress made the policy decision—which we are bound to enforce—that … victims have a right to inform the plea negotiation process by conferring with prosecutors before a plea agreement is reached." In re Dean, 527 F.3d 391, 395 (5th Cir. 2008). Under Dean, the district court was "bound to enforce" the CVRA. And nothing prevents re-opening the procedurally illegal DPA to afford the families their CVRA rights to confer. Indeed, standard contract law prohibits courts from enforcing an illegal contract.

This Court should grant the petition and direct the district court to ensure that the families are afforded their CVRA rights by re-opening the DPA and affording the families the opportunity to confer with the Government about prosecuting Boeing for committing "the deadliest corporate crime in U.S. history."

Tomorrow, I will have fifteen minutes before the Fifth Circuit to make my case. Obviously, I hope that the Fifth Circuit agrees with my argument–and agrees that the CVRA creates and protects enforceable rights for crime victims in the federal criminal justice process.