The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Fifth Circuit Rules that Victims' Families' Challenge to the Boeing Deferred Prosecution Agreement is "Premature"
The Fifth Circuit concludes that the violations of the Crime Victims Rights Act can provide grounds for refusing to dismiss the conspiracy charges against Boeing ... in later proceedings.
Late Friday, the Fifth Circuit ruled in an important Crime Victims' Rights Act (CVRA) case. The case challenges the Boeing deferred prosecution agreement (DPA) connected with Boeing's conspiracy to conceal safety issues surrounding its 737 MAX aircraft—a conspiracy that caused two 737 MAX crashes. Under the DPA, the Government and Boeing can move to dismiss the pending conspiracy charge against Boeing after the DPA concludes (in January). In its ruling, the Fifth Circuit held that the families who represent the victims killed in the two crashes could then challenge that dismissal motion. The ruling sets the stage for the families to continue their fight to hold Boeing accountable for its deadly conspiracy.
The case arises out of the crashes of two Boeing 737 MAX aircraft—crashes which killed 346 passengers and crew. The Justice Department later investigated Boeing for deliberately concealing safety problems with the 737 MAX. After the Department collected compelling evidence of Boeing's concealment, the Justice Department and Boeing secretly negotiated a deferred prosecution agreement (DPA) covering the crashes. In January 2021, the Department filed conspiracy charges against Boeing and, immediately thereafter, the DPA. The DPA provided that if Boeing committed no new crimes over the next three years, then the Justice Department would move to dismiss the charges at the conclusion of the three-year period. The Justice Department, working with Boeing, illegally concealed the DPA from the victims' families while they negotiated it.
After the DPA was filed, in December 2021, fifteen victims' families challenged the DPA. I filed motions on their behalf, arguing that the DPA had been negotiated in violation of their CVRA rights—including in particular their right to confer with prosecutors. Ultimately, in October 2022, the federal district court judge handling the case (Judge Reed O'Connor) ruled that the Justice Department had violated the families' rights in reaching the secret deal. But then, in February 2023, Judge O'Connor ruled, regretfully, that he could not enforce the victims' families' right to confer.
As authorized by the CVRA, I filed a petition with the Fifth Circuit, asking it to overturn Judge O'Connor's ruling. Following oral argument in July, on Friday the Fifth Circuit ruled that the families' petition was "premature." The appropriate time for challenging the DPA, the Fifth Circuit concluded, was when the parties (the Justice Department and Boeing) make a motion to dismiss the charges under the DPA.
The Fifth Circuit began by overturning Judge O'Connor's regretful conclusion that he lacked any power to enforce victims' rights:
We must … address the district court's additional conclusion that, despite its "immense sympathy" for the crime victims here, it lacks legitimate authority "to remedy the incalculable harm" those victims have suffered. To the extent that this conclusion determinatively denies application of the CVRA, that is inconsistent with the statute, the criminal rules, and court authority to resolve criminal proceedings commenced in court.
The Fifth Circuit then explained a parallel between the judicial authority that exists when the Government makes a motion to dismiss pursuant to a DPA and when it asks for dismissal of charges as part of guilty plea negotiations:
The emphasis we note, therefore, is that in both circumstances—full dismissal of charges to resolve a criminal prosecution or partial dismissal of charges to resolve a prosecution by guilty plea—courts retain adjudicatory responsibility, including an obligation to apply the CVRA. Public perception and confidence in the criminal justice system assume that when criminal charges are submitted for judicial resolution, the courts vigilantly will enforce the public interest, including Congress' command that crime victims are heard and protected.
…
…[I]n both cases—an accepted/rejected Rule 11 guilty plea or a granted/denied Rule 48(a) dismissal—the public interest, especially that of crime victims, rests crucially on court-approval. In short, the judicial role stays present and constant throughout, and courts must validate the public interest, above all, including rights that Congress has given to crime victims.
The Fifth Circuit found that its earlier ruling in In re Dean (5th Cir. 2008) provided a helpful analogy for resolving this case. In Dean, the Government and a corporate defendant secretly negotiated a plea deal in violation of crime victims' rights—and the Fifth Circuit instructed that the district court should carefully protect the victims' rights in subsequent proceedings. The same concern is present in this (the Boeing) case:
With the above in mind, the logic of our court's decision in In re Dean, is instructive and, in application here, determinative. As in Dean, the victims' families "should have been notified of the ongoing [DPA] discussions and should have been allowed to communicate meaningfully with the government . . . before a deal was struck." 527 F.3d at 395. That is particularly true if the deal, in ultimate outcome as approved by federal court, means no company, and no executive and no employee, ends up convicted of any crime, despite the Government and Boeing's DPA agreement about criminal wrongdoing leading, the district court has found, to the deaths of 346 crash victims.
Against this backdrop, the Fifth Circuit concluded that the families' petition challenging the DPA was "premature"—and the fact that the Boeing DPA had been negotiated illegally and in violation of crime victims' rights should be considered at the next stage of the process:
For this reason, as it was in Dean, we decide that mandamus intercession is premature. Thus far, the district court has demonstrated careful competence that, whereas it cannot substantively revise the DPA between the Government and Boeing, it nonetheless must uphold crime victims' statutory rights at every stage of the court's criminal proceedings. If a sought-for final stage is a Government motion to dismiss, we are confident, as in Dean, that the district court will assess the public interest according to caselaw as well as the CVRA, including violations already admitted to, as well as any other circumstances brought to its attention by the victims' families. See United States v. Hamm, 659 F.2d 624, 629 (5th Cir. Unit A Oct. 1981) (en banc) (reiterating Supreme Court and prior Fifth Circuit precedent that district judges are empowered to deny dismissal when "clearly contrary to manifest public interest" as assessed "at the time of the decision to dismiss") ….
The Fifth Circuit then dismissed the victims' families' petition—"without prejudice"—noting that it was "confident that the district court will uphold victims' CVRA rights throughout the instant criminal proceedings, above all when, how, and if judicial approval is sought to resolve this case."
Judge Clement concurred in the majority opinion and added an additional note about the importance of judicial enforcement of the CVRA:
I write separately to note that our decision should not be read as holding that the district court was prohibited from setting aside the DPA at an earlier stage of these proceedings—including upon motion from the victims' families—after finding that the victims' CVRA rights had been violated. Cf. Restatement (Second) of Contracts § 178 (providing that contracts entered in violation of public policy are void and unenforceable). Otherwise, we would be inviting criminal defendants and the government to violate victims' CVRA rights by negotiating DPAs in secret and taking their chances that the district court will accept Rule 48(a) dismissal years down the line.
Our holding is only that the district court was not required to do so. After all, the CVRA's "shall ensure" provision grants the district court discretion as to how it ensures that crime victims are afforded their statutory rights. See, e.g., 150 Cong. Rec. S4269 (Apr. 22, 2004) (statement of Sen. Feinstein) (stating that the "shall ensure" provision "is critical because . . . it is the courts that will be responsible for enforcing" victims' CVRA rights); 150 Cong. Rec. 22953 (Oct. 9, 2004) (statement of Sen. Kyl) (explaining that the "clear intent and expectation of Congress" was for district courts to "giv[e] meaning to the [CVRA] rights we establish"). And here, we are confident that the district court will ensure that the victims' families are afforded such rights prior to passing on any Rule 48(a) motion.
In light of the Fifth Circuit's decision, the case now effectively returns to the district court. If (as expected) the Justice Department moves to dismiss the conspiracy charge against Boeing, the effect of granting that motion would be (as the Fifth Circuit pointedly noted) that "no company, and no executive and no employee, ends up convicted of any crime, despite the Government and Boeing's DPA agreement about criminal wrongdoing leading, the district court has found, to the deaths of 346 crash victims." The families will strenuously object to any such resolution of the case, as it is impossible to see how such a result could be consistent with the public interest.
