The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Bondi Sentencing Memorandum Has Important Implications in the Criminal Prosecution of Boeing
The Justice Department's new guidance requiring prosecutors to disclose to a sentencing judge all relevant facts should require that, in any new plea deal, Boeing must acknowledge that it directly and proximately killed 346 people.
Today I made a filing for the victims' families in the criminal case against Boeing, flagging an important point about how the new Administration's approach to criminal sentencing should lead to a more transparent plea agreement with Boeing. Under the Bondi Memorandum, the new Administration now requires prosecutors to disclose all relevant facts to the sentencing judge—a requirement of "complete candor." As the Justice Department and Boeing continue negotiating a new agreement for Boeing to plead guilty to its conspiracy of defrauding the FAA, an extremely relevant sentencing fact will have to be candidly disclosed: that Boeing killed 346 people.
For the last several years, I have represented (pro bono) families who lost loved ones in the two crashes of Boeing 737 MAX aircraft. (See earlier posts here, here, and here.) The families want Boeing held fully accountable for the harms stemming from its federal crime of defrauding the FAA about the safety of the 737 MAX—a crime that the district judge handling the matter (Judge Reed O'Connor in the Northern District of Texas) has found directly and proximately killed 346 people.
Several years ago, the Justice Department and Boeing reached a deferred prosecution agreement (DPA), requiring Boeing to take appropriate steps to comply with federal anti-fraud laws. In exchange, Boeing's prosecution was deferred for three years to give it time to get its house in order. During the deal's three-year term, Boeing failed to meet its obligations—a failure shockingly brought to light on January 5, 2024, when a door plug on a new Boeing 737 MAX blew out, causing an uncontrolled decompression of the aircraft. In May of last year, the Justice Department found that Boeing had breached its obligations under the DPA. And in July of last year, the Justice Department and Boeing reached a plea agreement, under which Boeing would plead guilty to the pending conspiracy charge. But the plea deal did not require Boeing to acknowledge that its crime killed 346 people--the deadliest corporate crime in U.S. history.
On behalf of the families I represent, last July I objected to the plea deal. And last December, Judge O'Connor agreed that the agreement should be rejected, citing concerns about a DEI requirement and other problems in the agreement's corporate monitoring provisions. Since then, the Department and Boeing have been working on negotiating a new plea deal.
Today, the Department and Boeing filed their third motion for a continuance to allow further plea negotiations, citing the need to brief the new leadership in the Justice Department. The parties sought until April 11 to report back to the district court. I filed a notice that the families did not object to the third continuance now, but would object to any further continuances. In addition, my notice discussed how the Bondi Memorandum (which is a later iteration of an earlier Bove Memorandum) would require a new plea agreement that was more forthcoming about the deadly consequences of Boeing's crime:
The families appreciate that the parties' discussion will require extensive revisions to the earlier plea agreement that the Government agreed to under the previous Administration. In the opening days of the current Administration, the Justice Department announced new guidance for how criminal cases such as this one are to be handled. On January 21, 2025, the Justice Department released the "Bove Memorandum," which restored the Department's long-standing charging position articulated in the May 10, 2017, Memorandum entitled, "Department Charging and Sentencing Policy." As required by the recent Bove Memorandum—and as articulated in the 2017 Memorandum (and even earlier guidance dating back to the Bush and Reagan Administrations)—it is once again Department policy that prosecutors must reveal to a sentencing judge all relevant facts in the case:
prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553. In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.
As the families explained last summer in objecting to the proposed plea agreement negotiated during the previous Administration, that (now-rejected) plea agreement failed to reveal that Boeing's conspiracy crime directly and proximately killed 346 passengers and crew on two 737 MAX flights. See ECF No. 268-1 at 11-19; see also ECF No. 268-2 at 816. The truth about Boeing's lethal crime is quite obviously relevant to sentencing, and yet it was not mentioned. While such factual omissions were apparently allowed during the previous Administration, they are (quite properly) forbidden in the current Administration by the Bove Memorandum. The families' filings straightforwardly set out how to correct that omission and appropriately describe Boeing's deadly conspiracy crime in any future plea agreement.
Notice of Victims' Families (citing U.S. Dept. of Justice, Bove Memorandum (Jan. 21, 2025), citing U.S. Dept. of Justice, Charging Memorandum (May 10, 2017) (emphasis added)).
On February 5, 2025, Attorney General Bondi reiterated the principles of the Bove Memorandum in her own Memorandum, adding additional clarity on the need for revealing all relevant facts:
As with other steps in the criminal justice process, sentencing requires complete candor with the court, the defendant, the probation office, and the public. Prosecutors must alert the court and the defendant to all known relevant facts and criminal history.
Bondi Memorandum (Feb. 5, 2025) (emphases added).
The Bondi (and Bove) Memoranda restore an important principle in federal criminal sentencing: truth in sentencing. Under the Memoranda, the parties to a plea agreement cannot distort facts to achieve some desired outcome. Over the next four weeks, the Department and Boeing will continue working on a new plea agreement under which Boeing will plead guilty. (In the DPA, Boeing admitted it was guilty of conspiring to defraud the FAA.) I hope that Boeing's new plea agreement will be drafted in accord with the direction from Bondi (and Bove) Memoranda and acknowledge the lethal consequences of Boeing's crime.
Update: I fixed a small typo in the original post to make clear that Judge O'Connor's earlier ruling rejecting the proposed plea agreement rested, in part, on DEI concerns regarding how a corporate monitor was to be selected. Also, I wanted to clarify that in both the earlier (now-rejected) plea agreement and in the original DPA, the Justice Department and Boeing stipulated to a proposed sentencing guideline range. This stipulated guideline range incorrectly treated Boeing's crime as involving only a single victim—the FAA—rather than the 346 victims that Boeing killed. Judge O'Connor has already made a ruling that, through its crime, Boeing directly and proximately killed 346 people, as my original post noted (with a link to his ruling). Presumably the next iteration of a proposed plea agreement will follow the same course and also contain a stipulated guideline range. It is that stipulated guideline range that must, in my view, include an enhancement for Boeing causing the deaths of 346 people. Any other approach would violate the "truth in sentencing" requirement of the Bondi memorandum.
