Will Federal Judges Continue to Review Prosecutors' Motions to Dismiss?

Tomorrow, in United States v. Boeing, Judge O'Connor will consider the Justice Department's argument that the Department can agree not to prosecute the case even before he has ruled on whether to dismiss it.

Tomorrow Judge O'Connor of the U.S. District Court for the Northern District of Texas will consider an important issue about how Federal Rule of Criminal Procedure 48(a) operates. The Rule allows federal prosecutors to move to dismiss a previously filed criminal charge. But the motion must be approved by the district judge handling the case. In United States v. Boeing, the prosecutors handling that case have already signed a non-prosecution agreement (NPA) with Boeing, refusing to further prosecute a criminal conspiracy charge against Boeing—even before Judge O'Connor has ruled on the pending motion to dismiss. On behalf of some of the victims' families harmed by Boeing's conspiracy, I have objected to this novel move. Tomorrow, I will argue that Judge O'Connor should reject the Government's ploy and preserve the ability of federal judges to effectively review dismissal motions.

I've blogged about the Boeing criminal case a number of times before, including here, here, and here. In a nutshell, Boeing lied to the FAA about the safety of its 737 MAX aircraft. The Justice Department charged Boeing with conspiracy for these lies, but then immediately entered into a deferred prosecution agreement (DPA) to resolve the criminal case. After Boeing breached its DPA, the Department proposed a guilty plea with Boeing to resolve the matter. Judge O'Connor rejected the plea deal last December. But, most recently, at the end of May, the Department backtracked and signed an NPA with Boeing. The NPA includes a provision in which the Department agreed not to further prosecute Boeing (the "no-further-prosecution provision"). After signing its NPA with Boeing, the Department filed a motion to dismiss the pending conspiracy charge under Rule 48(a). That dismissal motion is now pending before Judge O'Connor. He has set a hearing on the issue for tomorrow.

I believe that the Department's subterfuge would, if approved, essentially gut Rule 48(a)'s judicial review requirement. As I argued in my brief:

If this Court approves the parties' maneuver in this widely publicized case, then this unprecedented approach will likely become the blueprint for all future dismissal motions in federal criminal prosecutions. Before filing a motion to dismiss under Rule 48(a), the Government and the defendant will simply enter into a non-prosecution agreement containing the no-further-prosecution language found here. Then the Government will file its dismissal motion, and any action that the Court might take thereafter becomes essentially irrelevant.

Readers who have been following this case may be interested in the Department's and Boeing's responses to this argument … and in my rejoinder.

In response to my argument opposing the Justice Department's motion to dismiss, the Department doubled down and stated directly that, regardless of how Judge O'Connor rules, it will not move forward with prosecuting Boeing. The Department wrote: "The NPA's no-further-prosecution clause merely reflects that the Government as an institution has decided it will not move forward with this case even if this Court denies the Rule 48(a) motion, as is the Executive Branch's constitutional prerogative." The Department goes on to defend its "prerogative" by arguing:

[T]he no-further-prosecution clause reflects a core constitutional reality. Although Rule 48(a) provides the Court a limited check against bad-faith dismissals, it does not authorize a court to compel the Government to prosecute. In the case of a consent motion [where the defendant agrees], like the one here, Rule 48(a) allows a court to protect against a prosecutor who, for venal, selfish, or capricious reasons, attempts to terminate a prosecution; such a rogue prosecutor in these circumstances has abandoned the duties she owes to the law and the Government and seeks to terminate a prosecution that the Government, as an institution, has not made a considered judgment to end. But should a court deny a Rule 48(a) motion where the Government as an institution has decided not to prosecute, as is the case here, "the Attorney General would still have discretion to decline to move the case for trial," and the court would prove "constitutionally powerless to compel the government to proceed." U.S. v. Cowan, 524 F.2d 504, 511 (5th Cir. 1975); see United States v. Adams, 24-cr-556 (DEH), 2025 WL 978572, at *19-20 (S.D.N.Y. Apr. 2, 2025).

DOJ Br. at 7-8 (some citations omitted).

Similarly, Boeing defends the no-further-prosecution provision, arguing that such an agreement is standard fare for cases like this one:

The government's non-prosecution commitment is set forth in the opening paragraph of the NPA, where the government agrees that it will "not further criminally prosecute the Company for any crimes relating to any of the conduct described in the Statement of Facts . . . ." [The no-further-prosecution provision] of the NPA simply and transparently makes the fundamental and indisputable point that the government (and only the government) can determine whether to bring and pursue a criminal charge (like the one set forth in the Information), and that the government has concluded—in its discretion—not to do so. See United States v. Adams, 24-CR-556, 2025 WL 978572, at *38 (S.D.N.Y. Apr. 2, 2025) (noting that "delving deeper" into the reasons behind the DOJ's motion to dismiss "would not change the ultimate outcome here, because the Court—even if it were so inclined—could not force the Government to prosecute this case by denying the Motion").

Because it is entirely within the government's discretion whether to pursue a criminal prosecution, an agreement not-to-prosecute (an NPA) does not require Court approval. And there is no basis under the law or the Federal Rules of Criminal Procedure on which to review the NPA and declare any part of it void as against public policy. While the Objecting [Families] argue extensively that this NPA is unprecedented, in fact it is at the core of every NPA—whether written or verbal—that the government agrees not to prosecute.

Boeing Br. at 6-7 (some citations omitted).

I have filed a reply brief for the families I represent (pro bono), addressing the arguments from the Department and Boeing. Here are some highlights, starting with the fact that the Department's maneuver is unprecedented:

The Government and Boeing … are attempting an unprecedented maneuver of contracting around any denial of the dismissal motion by the Court. The parties have already jointly agreed to a no-further-prosecution provision barring the Government from moving forward with the case. In their earlier briefs, the objecting families repeatedly emphasized that this approach was "unprecedented" [and] "[i]f examples exist, the Government can, of course, provide them." In response, the Government says nothing, implicitly conceding that this is an unprecedented ploy. And Boeing craftily changes the topic. Boeing deflects by arguing that a decision not to prosecute "is at the core of every NPA"—ignoring the unique timing of the decision here, which effectively circumvents Rule 48(a)'s judicial review provision. Make no mistake: although the parties are unwilling to admit the truth, this no-further-prosecution maneuver is unprecedented.

I next argue that Judge O'Connor can reject the motion to dismiss based on the parties' unprecedented maneuver alone:

On these unique facts, the Court should reject the motion to dismiss based solely on the preemptive timing of the NPA's no-further-prosecution provision. Accordingly, to deny the motion to dismiss, the Court need not investigate such things as "the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan." Boeing Br. at 10. Instead, the Court could just observe that this is the first case in modern American history where the parties have agreed that the prosecution of an already-filed criminal charge will stop, even before the Court has ruled on the dismissal motion.

I also note that the Fifth Circuit's earlier review of this case (In re Ryan, discussed here) makes clear that the Department's ploy violates settled principles. I explain:

To be sure, the Government and a criminal defendant may reach a non-prosecution arrangement between themselves before charges are ever filed—the standard way in which an NPA unfolds. As the Fifth Circuit explained, "An NPA is just that: no prosecution commences in court. Courts are uninvolved, so accountability for the (declination) decision not to prosecute lies squarely on the government.… Contrastingly, a criminal prosecution that is submitted to courts to resolve, regardless of any party intention in the future to move to dismiss, receives judicial imprimatur .…" In re Ryan, 88 F.4th 614, 625 (5th Cir. 2023). By attempting to preempt the effectiveness of the Court's decision on the dismissal motion, the parties have destroyed the Article III accountability that Rule 48(a) protects. Nor do the parties dispute that the "Government's contractual promise that it will never prosecute Boeing—regardless of what the Court concludes—casts a long shadow over any judicial decision regarding the motion to dismiss."

The parties never justify why they decided to execute a binding non-prosecution agreement before the Court had ruled on the motion to dismiss. This unexplained preemption of court action "clearly indicate[s] a 'betrayal of the public interest.'" United States v. Hamm, 659 F.2d 624, 629 (5th Cir. 1981) (quoting Cowan, 524 F.2d at 514).

Of course, in this short blog post, I have not covered all aspects of this case, including some of the other (very objectionable) provisions in the NPA. Nor have I covered all the arguments (both pro and con) on the pending issues. I've linked the relevant briefing in this post, so that the interested reader can read more. And there is some additional briefing in my brief surrounding my request for a special prosecutor to be appointed to pursue the case, now that the Department has abandoned it.

In this post, I've  highlighted the issues surrounding the Boeing no-further-prosecution provision because it is truly unprecedented, as all parties seemingly agree. The Department makes no effort to show that its approach has ever been previously used. If the Department's tactic is upheld here, it will establish a new road map for how federal prosecutors will proceed whenever they want to dismiss a previously filed charge. The prosecutors will be able to agree, in advance, with the defendant to a non-prosecution agreement. And then, as in this case, a judge's ruling on the motion to dismiss becomes a moot point. For example, even if the Court were to provide a perfectly good (but previously unconsidered) reason for the Government to move forward with prosecuting the case, the Government will have already made a binding commitment not to do so.

This unheard-of approach would be a dramatic shift from the way things have been done in federal court for the last 81 years. Previously, prosecutors would submit to a judge an "intent" to dismiss, and await the judge's ruling before deciding how best to proceed. These procedures have been followed since 1944, when Rule 48(a) was adopted. I look forward to making the case tomorrow to Judge O'Connor for maintaining the traditional approach.

Note: I have been joined in representing some the victims' families by (among other excellent lawyers) Bob Clifford and Tracy Brammeier at Clifford Law Offices, Erin Applebaum and Justin Green at Kreindler & Kreindler,  Sanjiv Singh of Sanjiv Singh Law Corp., Filippo Marchino of the X-Law Group, and Warren Burns, Darren Nicholson, and Chase Hilton at Burns Charest (very capable local counsel in Dallas).