Victims' Families Ask the Fifth Circuit to Overturn the Dismissal of the Criminal Case Against Boeing

My two petitions for writs of mandamus challenge the Justice Department's violation of the Crime Victims' Rights Act and argue for substantive "public interest" review of prosecutors' dismissal motions.

Last Thursday, families who lost relatives in the crashes of two Boeing 737 aircraft petitioned the Fifth Circuit to reinstate the criminal charge against Boeing. In two petitions I filed, the families asked the Circuit to reverse District Judge O'Connor's approval last week of the Justice Department's motion to dismiss the conspiracy case against Boeing. The petitions explained that the Department violated the Crime Victims' Rights Act (CVRA) by not fully conferring with the families about its dismissal plans—and by concealing a deferred prosecution agreement (DPA) from the families in the initial phases of the case. The petitions also argue that Judge O'Connor failed to fully assess whether dismissing the case was in the "public interest." Today, the Fifth Circuit consolidated the two petitions and ordered the Justice Department and Boeing to respond. In this post, I set out the case's current procedural posture and then the families' arguments.

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 DPA to resolve the criminal case. In subsequent litigation, the families proved that the 346 passengers and crew on board the two doomed 737 MAX flights were "crime victims" under the CVRA—they had been directly and proximately harmed by Boeing crime. This makes Boeing's conspiracy crime the "deadliest corporate crime in U.S. history," as Judge O'Connor described it.

In the most recent proceedings, the Justice Department moved to dismiss its earlier-filed charge against Boeing in favor of resolution through a non-prosecution agreement (NPA). Earlier this month, I blogged about Judge Reed O'Connor (U.S. District Court for the District of the Northern District of Texas) granting the Justice Department's motion. In his order, Judge O'Connor essentially agreed with many of the factual objections that I have made for the families who lost loved ones because of Boeing's crime. But, reluctantly, Judge O'Connor dismissed the charge, concluding that he lacked a legal basis for blocking the Department's ill-conceived non-prosecution plan.

Last week, the victims' families filed two challenges to the dismissal. I'll focus here on the petition challenging the NPA. A related petition challenges the earlier DPA reached in the case because of the Department's CVRA violations. Here's the introduction to the families' petition challenging the NPA (some citations omitted):

A year-and-half ago, many of the same victims' families filing this petition came to this Court in the same underlying criminal case—seeking enforcement of their CVRA rights and justice for Boeing criminally killing hundreds. See In re Ryan, 88 F.4th 614 (5th Cir. 2023). Following oral argument, this Court denied their petition as "premature," explaining that if and when "judicial approval is sought to resolve the instant case, the district court has an ongoing obligation to uphold the public interest and apply the CVRA." Id. at 627.

Last week, the district court made its decision on resolving the charge below, approving the Government's motion to dismiss the pending conspiracy charge against Boeing. The district court's decision essentially confirmed this Court's prophetic fear that this case's "ultimate outcome as approved by [a] federal court, means no company, and no executive and no employee, ends up convicted of any crime, despite the Government and Boeing's … agreement about criminal wrongdoing leading, the district court has found, to the deaths of 346 crash victims." 88 F.4th at 627.
Now that the issues are no longer "premature," this Court should intervene to protect both the victims' families' CVRA rights and the broader public interest. In granting dismissal, the district court failed to protect the families' CVRA rights, including their rights to reasonably confer and to be treated with fairness. The Government's alleged "conferral" conference calls with the victims' families were perfunctory exercises—lacking in any actual substantive conferring and hiding from the families critical features about the dismissal. Because of these unaddressed CVRA violations, this Court should reverse the district court.

This Court should also reverse because the district court misunderstood this Court's precedents regarding the need to protect the public interest when reviewing dismissal motions. The district court seemed to construe this Court's precedents as requiring it to approve the Government's motion to dismiss so long as the prosecutors had "not acted with bad faith" and had "given more than mere conclusory reasons" for the dismissal." Op. at 9. But this parsimonious reading ignored this Court's prior instructions in this very case—that under "Supreme Court and prior Fifth Circuit precedent … district judges are empowered to deny dismissal when clearly contrary to manifest public interest …" and that thus district judges will "vigilantly … enforce the public interest." Ryan, 88 F.4th at 626-27 (internal citation omitted).

Here, the district court found that the victims' families provided "compelling" reasons to deny the dismissal. Id. at 8. And yet, the district court reluctantly concluded that it was somehow required to give its approval to an agreement that "fails to secure the necessary accountability to ensure the safety of the flying public." Op at 6. In other words, the district court thought it had no choice but to lend its imprimatur to the dismissal. The district court was wrong. It had the power to reject the stunning injustice inherent in simply dismissing the charge for "the deadliest corporate crime in U.S. history." To protect the manifest public interest, this Court should reverse.

One of the most important parts of this petition is its challenge to the Justice Department's unprecedented approach of entering into a binding non-prosecution agreement with Boeing before securing district court approval for its motion to dismiss. I've blogged about this important issue in two earlier posts, here and here. The families' petition explains why the Fifth Circuit should reverse to protect the long-standing practice of judicial review of Justice Department dismissal motions:

The district court's approval of the Government's "unprecedented" no-further-
prosecution provision effectively guts Rule 48(a). Even before the district court ruled, the Government and Boeing had devised an agreement in which the Government promised not to further prosecute Boeing—even if the district court thereafter denied the motion to dismiss. Never before in Rule 48(a)'s eighty-year history has the Government entered such a preemptive agreement—much less received after-the-fact judicial approval for its ploy. In Ryan, this Court recounted that any contractual agreements, such as NPAs, "derogate neither court authority nor statutory rights." 88 F.4th at 625. But if this Court approves the Government's contractual end-run around Rule 48(a), this scheme will no doubt "become the blueprint for all future dismissal motions in federal criminal prosecutions." This disturbing subterfuge alone renders the Government's dismissal motion clearly contrary to manifest public policy—the long-standing public policy provided by Rule 48(a) of judicial review before the Government can terminate a prosecution.

The latest status is that the Fifth Circuit today entered a brief procedural order. The Circuit consolidated the two petitions and directed the Justice Department and Boeing to respond to the families' petitions by December 17. I then have three weeks to respond.

I hope that the Fifth Circuit will ultimately rule in favor of the victims' families and block the miscarriage of justice that would result if the deadliest corporate crime in U.S. history simply goes unpunished.

Comments

[Carlos Inconvenience]

As I said before, I have no love for Boeing and can get behind suing them into bankruptcy, but why is a “libertarian” blog urging a judge to effectively order a prosecutor to charge someone? I can think of few more anti-liberty scenarios than overturning the time honored maxim,”better that ninety-nine guilty men go free than that one innocent man be executed.”

[MollyGodiva]

Because Boeing's criminal acts caused the death of 346 people, and it is not a libertarian position to let criminals who kill people off the hook. Boeing already violated one deferred prosecution agreement.

[Carlos Inconvenience]

It is, indeed, a libertarian principle to let criminals who kill people off the hook if doing so is consistent with limited government principles, one such principle being a presumption that prosecutorial discretion to dismiss or reduce charges should be honored. Another such principle being the executive makes decisions regarding law enforcement while the judiciary acts as a neutral referee of the law, not an advocate.

[David Nieporent]

one such principle being a presumption that prosecutorial discretion to dismiss or reduce charges should be honored

That is not in any way a libertarian principle.

[denizen]

How do you decide what's criminal in aviation design and what's not? If the pilots had done their job correctly, nobody would have died. At the same time, Boeing was substantially culpable for concealing information that any pilot would want to know. It seems like a clear issue of prosecutorial discretion.

[MollyGodiva]

"If the pilots had done their job correctly, nobody would have died."
This has been proven false. There was nothing the pilots could have done different. For the second crash the pilots knew about the flaw, did what Boeing recommended, and still crashed. It was not just Boeing concealing information, they build planes that under some (known) circumstances would crash.

[denizen]

I think the following are extremely balanced presentations of what happened (and, to be clear, the ex-line-training 737 captain doing the video wouldn't and didn't cast blame on the pilots but you can draw your own conclusions):

https://www.youtube.com/watch?v=L5KQ0g_-qJs (accident 1)
https://www.youtube.com/watch?v=DcB31RgeL50 (accident 2)

My take-away from them and other content I've read or watched from pilots is that the second accident was also avoidable had the pilots: (1) more promptly disabled automatic trim and adjusted the trim manually as required; and (2) not reactivated automatic trim. I think it was pretty clear that's what training demanded of them (Boeing's defense that the pilots failed to properly execute the "runaway stabilizer" checklist). I'm also not casting aspersions on the pilots; I don't think you can read descriptions of events and not think Boeing has substantial blame in design decisions and not providing information to pilots and airlines. Plus there was a lot else going wrong in the second accident.

[MollyGodiva]

Go watch the second video again.

[denizen]

I did. As I said, people can look at it differently. But, yes, if the trim cutoff is applied after the first MCAS activation, I think you get a different result. It's obviously speculative.

I don't see how the pilots did what training called for. The host of that presentation is a pilot and does a lot to put things in the best light for them. If you're pointing out the incomplete and inaccurate bulletin ("during manual flight only"), I don't see where it says not to use the stabilizer cutout in response to un-commanded and inappropriate changes in trim (https://livingsafelywithhumanerror.wordpress.com/tag/boeing-operations-manual-bulletin-tbc-19/ has a copy of the bulletin).

[Hey Skipper]

"Because Boeing's criminal acts caused the death of 346 people ..."

What both these crews were faced with was in instance of Uncommanded Pitch Trim, for which there is an abnormal checklist, although adequate system knowledge makes the first corrective action practically automatic: Pitch Trim switch from Primary to Auxiliary.

That alleviates the problem instantly, no matter its cause. The crew then has to complete the flight using the pitch trim wheels.

In any abnormal situation, there are three basic steps:

1. Maintain Aircraft Control
2. Analyze the situation
3. Take appropriate corrective action.

The first crew got through step one, but failed step two resulting in an inability to maintain aircraft control.

Ethiopian massively failed step one.

When starting the takeoff roll, the pilot flying sets the auto thrust system to Takeoff Power. This moves the throttles to command the thrust setting appropriate to aircraft weight, runway length and density altitude.

The thrust setting will remain at takeoff power until a vertical mode is selected, to avoid an auto thrust fault commanding a thrust reduction at low altitude and airspeed.

The pilot flying never got out of Takeoff, which meant the airplane was going to continue accelerating. With a trim problem, airspeed is not your friend.

This is basic airmanship stuff.

In both mishaps, the corrective action was will within the ability of a well trained crew to quickly implement.

As pilot flying, it would go like this:

1. Pull the airspeed set knob to switch the auto thrust system out of Takeoff into Airspeed Hold. Power comes back, airplane maintains about 220 knots, instead of accelerating through 400.

2. Switch the pitch trim to aux

3. Direct the non-flying pilot to conduct the Uncommanded Pitch Trim abnormal checklist.

That MCAS caused the uncommanded trim is beside the point — the checklist is cause independent.

It may well be that MCAS could have integrated other inputs to decide whether a very high angle of attack was plausible. However, that doesn't relieve the pilots of their inability to deal with a situation so easily corrected that doing so would take less time than to type a single sentence in my comment.

It is behind a paywall, but once upon a time, the NYT did serious, long form journalism. Here is a 7500 some-odd word article on these mishaps by a guy with serious credibility:

https://www.nytimes.com/2019/09/18/magazine/boeing-737-max-crashes.html

[David Nieporent]

1) This is not a "libertarian blog." At best, it's a mostly libertarianish blog — the only actual libertarian is Prof. Somin — and the "blog" isn't urging anyone to do anything; one particular blogger is.

2) I don't know any flavor of libertarians who object to criminals being prosecuted, anyway, as long as the crimes are real rather than victimless ones. There's no "innocent man" here.

[John F. Carr]

The blog is "often" libertarian. Cassell is more of a tough on crime conservative. Blackman is from the socially conservative wing of the conservatives. Somin is a caricature of a libertarian. Bernstein, as he contributes to this blog, is focused on race and in particular issues related to Jews and Israel.

[wvattorney13]

Let's say the judge orders the government to prosecute. What happens if the prosecution immediately rests its case without presenting evidence?

Even if we get past that, do victims have the opposite rights? Can a wife who was allegedly beaten by her husband now demand dismissal of a prosecution--or would this only work one way? Do victims automatically win?

[denizen]

You're being too trusting. It's completely obvious beyond any doubt that Fed. R. Crim. P. 48(a) protects the defendant, not the victim. Lawyers who get upset about policy outcomes they don't like play silly word games. It's not worth taking seriously.
To be clear, I get that you could try to construct an argument that I'm wrong from judicial decisions. But any judicial decision that suggests that any interest in prosecuting the defendant somehow matters under Rule 48 is frivolous.
I don't think that people on the other side of this issue have any practical experience in criminal defense. The issue is with people getting repeatedly prosecuted for the same offense when the court knows that the prosecution's position is frivolous.

[F.D. Wolf]

The judiciary cannot force the executive to pursue a prosecution it does not wish to pursue, and any statute that purported to say otherwise would be an unconstitutional infringement upon the separation of powers. Ultimately, these are political questions, not legal ones. If the public feels a President or a district attorney is not pursuing prosecutions to its satisfaction, its remedy is to elect a new President or district attorney, not all-powerful judges who can order prosecutions.

[David Nieporent]

Let's say the judge orders the government to prosecute. What happens if the prosecution immediately rests its case without presenting evidence?

That's why it's impossible to force the administration¹ to prosecute; you can't make them prosecute competently. The only way to enable a prosecution that the regular prosecutor doesn't want to pursue would be for the judge to appoint his/her own prosecutor. Which would be its own can of worms.
​
​
¹I am guilty of using the phrase "the government" too in contexts like this, but I am trying to wean myself off it. A judge is "the government" just as much as a prosecutor is.

[Krenn]

To be fair, there have been legal precedents in the past for allowing private prosecutions by people who are not the duly appointed public prosecutor, but nonetheless manage to present a plausible case.

If I remember correctly, that used to be one of the jobs of a grand jury... to decide whether or not to allow PRIVATE prosecutions of certain alleged offenses. The fact that the federal government doesn't have those anymore is one of the reasons why grand juries will now cheerfully indict a ham sandwich. They're always dealing with a professional prosecutor who is (almost) certainly motivated by the public interest.

[F.D. Wolf]

I am sympathetic to Prof. Cassell and his clients, but not to his legal arguments. People may disagree about what is in the "public interest", but ultimately, that decision must be made by the public through its elected representatives in the political branches, not by unelected, essentially unaccountable judges acting as philosopher-kings. "Substantive public interest" sounds like substantive due process on steroids.

[MollyGodiva]

No, quite the opposite. Prosecution decisions should never be political decisions. Impartial prosecutes following the law is required for justice. If the prosecutors won't follow the law judges can step in.

[F.D. Wolf]

Perhaps under your vision of an ideal society, but not under the Constitution of the United States. The executive power is vested in one Executive, even when it is one you don't like.

[MollyGodiva]

Having the president dictate who gets prosecuted and who does not is one of the greatest threats to the rule of law that there is. That is why the Constitution does not give the president that power.

[F.D. Wolf]

The petition for certiorari is granted. The Court of Appeals for the Sixth Circuit affirmed the conviction of petitioners, husband and wife, under an information charging them with violating the federal obscenity statute by having mailed undeveloped films of each other posing in the nude to an out-of-state firm for developing, and having received through the mails the developed negatives and a print of each.

In response to the certiorari petition, the Solicitor General has filed a motion requesting that the judgment of the Court of Appeals for the Sixth Circuit be vacated, and the cause remanded to the District Court with directions to dismiss the information. The ground of the motion is that "the initiation of the instant prosecution was not in accord with policies which had previously been formulated within the Department [of Justice] for the guidance of United States Attorneys."

The policies referred to are set forth in a memorandum to United States Attorneys, dated August 31, 1964. The memorandum states, in pertinent part, that prosecution for mailing private correspondence which is allegedly obscene "should be the exception confined to those cases involving repeated offenders or other circumstances which may fairly be characterized as aggravated."

The Solicitor General states that there are no such exceptional circumstances warranting a prosecution of petitioners:
"They were not repeated offenders. They had no record of involvement with obscene materials or sex-related offenses, and no apparent opportunity for close association with young people. No other aggravating circumstance appears to be present."
In consideration of the premises, and upon an independent examination of the record filed in this Court, the motion is granted. The judgment of the Court of Appeals is accordingly vacated, the cause is remanded to the District Court, and that court is directed to dismiss the information.

Redmond v. United States, 384 U.S. 264, 264-65 (1966) (per curiam).

Does that case make you weep for the death of "rule of law", or is it (D)ifferent when an exercise of prosecutorial discretion meets with your approval? I was not happy when President Biden, on his first day ordered a halt to all deportations - court-ordered deportations - but I did not argue that he was acting outside the bounds of his authority, and that some judge would be within his power to order those deportations carried out.

Ultimately, the decision of which prosecutions to bring, not to bring, or to dismiss, must lie with somebody, and in our system that is the President. My view of presidential power does not wax and wane depending on my feelings about who happens to occupy the White House at a particular moment. That is known as applying neutral principles, a concept utterly foreign to much of the commentariat here (and, frankly, one or two of the co-bloggers as well.)

[SRG2]

Another case supporting my proposed baseball bat law.

[John F. Carr]

It's hard to imagine the Fifth Circuit finding a clear duty to refuse to dismiss the case. As long as the judge acknowledged the arguments by the victims, what's left is at most an ordinary mistake.

[ReaderY]

What happens if the Fifth Circuit overturns the dismissal? Does the court appoint an independent prosecutor? Let the case languish in limbo until either a new administration decides to prosecute or the speedy trial clock lapses? What?

If the speedy trial clock will lapse before anything happens, is there Article III standing? Injury in fact and causation are met. But what about redressability?

What can a court do that will practically redress the victims’ grievances, other than to provide the emotional satisfaction of a verdict against the government? Can the emotional satisfaction of being agreed with by itself provide standing? Ordinarily it doesn’t.