The Volokh Conspiracy
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Boeing Has Confessed to Committing Its Deadly Crime … and Should Now Plead Guilty
Boeing has no defense to the charged crime of defrauding the FAA. Rather than go through a pointless trial with a preordained result, it should plead guilty straightaway.
Yesterday Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas set a trial date (June 23rd) in United State v. Boeing. The case concerns a long-pending federal criminal charge filed against Boeing for conspiring to defraud the FAA. Boeing has reportedly been dragging its heels about pleading guilty. Boeing has no defense. It should do the right thing and plead guilty as soon as possible.
As I've blogged about previously (see here, here, here, and here), the criminal charge pending against Boeing arises out of two deadly crashes of Boeing 737 MAX aircraft in 2018 and 2019. A Justice Department investigation uncovered the fact that Boeing had lied to the FAA about the safety of the aircraft—lies that led directly and proximately to the crashes killing 346 passengers and crew. On January 7, 2021, the Justice Department filed a criminal information with a one-count conspiracy charge against Boeing, alleging that
From at least in or around November 2016 through at least in or around December 2018, in the Northern District of Texas and elsewhere, the Defendant, THE BOEING COMPANY, knowingly and willfully, and with the intent to defraud, conspired and agreed together with others to defraud the United States by impairing, obstructing, defeating, and interfering with, by dishonest means, the lawful function of a United States government agency, to wit, the Federal Aviation Administration Aircraft Evaluation Group ("FAA AEG") within the United States Department of Transportation, in connection with the FAA AEG's evaluation of the Boeing 737 MAX airplane's Maneuvering Characteristics Augmentation System ….
A few minutes after filing the charges, the Justice Department then filed a deferred prosecution agreement (DPA), deferring prosecution on the condition that Boeing take certain anti-fraud and other safety measures over the next three years. Judge O'Connor approved the DPA.
But later that year, I filed a Crime Victims' Rights Act (CVRA) challenge to the "sweetheart" DPA, arguing that the Justice Department had failed to confer with the victims' families about the deal. Following several evidentiary hearings, Judge O'Connor agreed that the Department had violated the CVRA in failing to confer with the victims' families in what can properly be described as "the deadliest corporate crime in U.S. history." But after further litigation—and an intermediate ruling from the Fifth Circuit that further victims' rights challenges were "premature"—the DPA's three-year term expired on January 7, 2024. The Justice Department then reviewed whether Boeing had lived up to its DPA obligations. Noting the blowout of a doorplug on a Boeing 737 MAX on January 5, 2024 (two days before the DPA expired), the Department concluded that Boeing had failed. On May 14, 2024, the Department filed its notice that Boeing had breached its safety obligations under the DPA. In July 2024, the Justice Department and Boeing reached a plea deal, under which Boeing would plead guilty, pay a $455 million fine, but would not admit to causing the 346 deaths. On behalf of my victims' families, I objected. And following a hearing, on December 5, 2024, Judge O'Connor rejected the proposed plea agreement, citing a constitutionally dubious DEI provision and lack of judicial involvement in monitoring Boeing. He gave the parties (DOJ and Boeing) thirty-days to advise how they wanted to proceed.
Since then, the Justice Department and Boeing have asked for—and received—three extensions of time to report back to Judge O'Connor. The extensions were to February 16, 2025; to March 14, 2025; and, most recently, to April 11, 2025. With regard to the last extension, I filed a notice for my victims' families that, if further extensions beyond April 11 were sought, then the families would object. Under the Crime Victims' Rights Act (CVRA), they have a right to proceedings free from unreasonable delay.
But before the April 11 deadline arrived, Judge O'Connor acted to speed things along. Two days ago (late on March 24), the Wall Street Journal (and other media) reported that Boeing was pushing to withdraw from any plea agreement that would require it to plead guilty. And then, less than 24 hours later, Judge O'Connor sua sponte set a trial date in the case:
The Court hereby VACATES its April 11, 2025, deadline in its previous Order and instead sets this case for trial on Monday, June 23, 2025, at 9:00 am in the Second Floor Courtroom, 501 W. 10th Street, Fort Worth, Texas. A separate Scheduling Order shall issue.
Judge O'Connor's order is good news, not only for the victims' families but also for the fair administration of justice. The families have now waited for years for justice in this case. Judge O'Connor's order means that they will either have a resolution by June 23—or a chance to see Boeing stand trial for its crime. Boeing has clearly used its expansive legal team to delay the proceedings. At some point, enough is enough. That point appears to have arrived yesterday.
Since yesterday's order, I've also seen some speculation that Boeing might just decide to go to trial and take its chances with a jury. This speculation does not full appreciate where things stand. Boeing has no defense.
I previously filed a declaration about how simple it would be for the Government to now go to trial and convict Boeing. Boeing has fully and formally "confessed" to its crime in a binding court filing. Specifically, when Boeing entered into the DPA in January 2021, it agreed to provisions that constitute a full confession that it is guilty of the charged crime. DPA Paragraph 2 states that Boeing "admits" that the Statement of Facts is "true and accurate":
The Company admits, accepts, and acknowledges that it is responsible under United States law for the acts of its officers, directors, employees, and agents as charged in the Information, and as set forth in the Statement of Facts, and that the allegations described in the Information and the facts described in the Statement of Facts are true and accurate.
DPA ¶ 2 (emphases added). Boeing goes on to agree that the Statement of Facts can be used by the Government in any deferred (i.e., any later) prosecution, such as a prosecution that might follow in the wake of the Government's "breach" determination:
The Company agrees that, effective as of the date it signs this Agreement, in any prosecution that is deferred by this Agreement, it will not dispute the Statement of Case Facts set forth in this Agreement, and, in any such prosecution, the Statement of Facts shall be admissible as: (a) substantive evidence offered by the government in its case-in-chief and rebuttal case; (b) impeachment evidence offered by the government on cross-examination; and (c) evidence at any sentencing hearing or other hearing. In addition, in connection therewith, the Company agrees not to assert any claim under the United States Constitution, Rule 410 of the Federal Rules of Evidence, Rule 11(f) of the Federal Rules of Criminal Procedure, Section 1B1.1(a) of the United States Sentencing Guidelines ("USSG" or "Sentencing Guidelines"), or any other federal rule that the Statement of Facts should be suppressed or is otherwise inadmissible as evidence in any form.
DPA ¶ 2.
The DPA was signed by the highest executive possible in The Boeing Company, specifically David L. Calhoun, then the President and Chief Executive Officer of Boeing—as evidenced by the detailed "Company Officer's Certificate" in the agreement. And there was also a Certificate of Counsel by Boeing's large legal team, attesting to the validity of Boeing's DPA representations.
The DPA's Statement of Facts contains 54 paragraphs. Those paragraphs cover in detail all of the necessary elements and facts required to prove beyond a reasonable doubt that Boeing is guilty of the crime charged in the Criminal Information. In other words, Boeing's attestation that the Statement of Facts is "true and accurate" constitutes a complete, signed confession by Boeing to the pending charge. That conclusion cannot be reasonably contested by Boeing (or the Government). The DPA's Statement of Facts was designed to undergird a deferred prosecution agreement, allowing a later prosecution to be effectively based on the representations in the DPA. And on their face, the 54 facts appear to be credible and consistent in describing how Boeing conspired to defraud the FAA.
In its extensive briefing regarding the proposed plea agreement last summer, Boeing only vaguely argued that, in a contested case, "Boeing could bring certain challenges to the admissibility of that statement of facts." Boeing Br. Supporting Plea at 21. Boeing did not identify what those challenges to admissibility might be, since it specifically agreed that "the Statement of Facts shall be admissible as … substantive evidence offered by the government in its case-in-chief …." DPA ¶ 2 (emphasis added). And presumably the only reason that Boeing asserted that it "could" bring a challenge—not that it would bring a challenge—is that Boeing specifically "agree[d] not to assert any claim" that those facts should be suppressed. In light of Boeing's specific and voluntary agreement to the admissibility of the Statement of Facts, any challenge by Boeing to the admissibility of the Statement of Facts in a trial would be not only frivolous but also a violation of its DPA obligations.
Another type of evidence that would be available in a trial of The Boeing Company is incriminating evidence from the defendant itself (i.e., from Boeing's executives). During the trial of an individual defendant, the Government (of course) cannot call the defendant to the stand and ask him whether he is guilty. Individual defendants are entitled to assert a Fifth Amendment right against Self-Incrimination. But in any trial of The Boeing Company, the Government could simply call a Boeing executive to admit the company's guilt. As a corporation, Boeing has no Fifth Amendment right against self-incrimination. See Braswell v. United States, 487 U.S. 99 (1988).
In short, Boeing is not only guilty of the crime of conspiring to defraud the FAA but it has already given an ironclad confession of its guilt. It would have to admit the truth at trial. Going to trial would be pointless.
So what should Boeing do? To me, as an attorney for families who lost loved ones as a direct result of Boeing's deadly crime, the answer to that question is obvious: Boeing should stop dragging its heels and simply do the right thing. It should plead guilty to its crime, acknowledge its responsibility for killing 346 people, and then ask the judge to impose an appropriate sentence.
