The Volokh Conspiracy
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Fifth Circuit to Hear Oral Argument on the Victims' Families' Challenge to the Dismissal of the Boeing Criminal Case
I hope to convince the Fifth Circuit to fully protect the families' rights under the Crime Victims' RIghts Act.
Tomorrow I will be arguing in the Fifth Circuit for 31 families whose relatives were killed in the crashes of two Boeing 737 MAX aircraft. I have filed two Crime Victims' Rights Act (CVRA) petitions with the Circuit, asking it to reverse District Judge Reed O'Connor's approval of the Justice Department's motion to dismiss its criminal conspiracy case against Boeing. The petitions explain that the Department violated the CVRA by not reasonably 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." In this post, I set out the three main arguments I will be presenting, and attach the relevant filings (from both sides) for those who are interested.
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). Judge O'Connor of the Northern District of Texas granted 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.
As authorized by the CVRA, I have filed two petitions (found here and here) seeking to overturn Judge O'Connor ruling. DOJ has responded, as has Boeing. My reply brief sets out the three main arguments for reversing the Judge O'Connor, which the Fifth Circuit will consider tomorrow:
Did the District Court Protect the Victims' Families' Rights at "Every Stage" of the Process
My first petition challenges the fact that the Justice Department orchestrated a secret deferred-prosecution agreement for Boeing back in in 2021, in violation of the families CVRA rights. Now, to protect the families' rights, the DPA needs to be declared void as against public policy. As my reply brief summarizes the argument:
the Court should instruct the district court to invalidate the DPA and conduct further proceedings free from the influence of that agreement. Directing the district court to invalidate the DPA would allow the victims' families the "unfettered" opportunity to confer with the Government about appropriate next steps in this case. See Appx. 591-92 (discussing Does 1 & 2 v. United States, 359 F.Supp.3d 1201, 1218 (S.D. Fla. 2019) (quoting 950 F.Supp.2d at 1267)). This direction would necessarily mean reversing the district court's decision to grant the motion to dismiss, as the course of the new proceedings after the DPA is invalidated could alter whether (or how) the district court would need to review any motion to dismiss.
The Government seeks to conjure the illusion that the DPA has become irrelevant because the Government determined that Boeing breached the agreement. But inconveniently for the Government, the DPA refuses to remain buried in its grave. As the victims' families explained in their DPA petition (DPA Pet. 27-28), the Government's NPA and its incorporated attachments contain dozens of references to the DPA. See NPA, ECF No. 312-1 passim.1 As one illustration of how the DPA controlled the NPA, on its face, the NPA relied on the DPA's Guidelines calculations to calculate Boeing's financial penalty:
… pursuant to Paragraph 26 of the DPA, the Offices have determined that the appropriate resolution of this case is for the Offices to dismiss the Information … and enter into a non-prosecution agreement with the Company with a two-year term; payment by the Company of an overall criminal monetary penalty amount of $487,200,000, which reflects a fine at the top of the applicable Sentencing Guidelines fine range and the maximum fine allowable under Title 18, United States Code, Sections 371 and 3571(c), including credit for the $243,600,000 previously paid by the Company pursuant to the DPA, resulting in a remaining criminal penalty owed by the Company of $243,600,000 ….
NPA, ¶ 3 (emphases added).
It appears to be undisputed that the Justice Department violated the victims' rights at the first stage of this entire process. Hopefully, the Fifth Circuit will order the district court to remedy those violations by setting aside the DPA.
Did the Justice Department Reasonably Confer about the Recent Non-Prosecution Agreement
My next argument concerns the recent non-prosecution agreement (NPA), which the Justice Department did not reasonably confer about about. Here is my argument summarized in the reply brief:
The Government failed to reasonably confer about the NPA's no-further-prosecution
provision. The provision had already gone into effect before the victims' families knew about it, effectively rendering the families' later objections to the motion to dismiss meaningless. See Families' NPA Pet. 15-20 (citing, e.g., ECF No. 318-1 at 16).The Government responds to this argument by, first, distorting the record below. The Government claims it discussed both a potential NPA and a motion to dismiss with the families—but then asserts that "[n]o one questioned, at or after the conferral, these two separate promises or their sequences." Gov't Resp. 48. Not true. The victims' families lead argument—briefed extensively below (see, e.g., ECF No. 340 at 3)—was that the Government deceived them about the sequence. Specifically, as set out below in the (uncontested) sworn declaration of the families' counsel:
If I had been made aware that the Government was considering entering into such an agreement before the Court had ruled on any motion to dismiss, I would have, on behalf of my clients, made my strenuous objection known to the Government and sought to swiftly present the issue to the Court before the Government entered into such a binding agreement. …
ECF No. 318-1 at 15.
The Government's concealment was particularly misleading against the backdrop of the Government's decades-long practice of presenting a motion to dismiss to the district court before entering a formal agreement not to prosecute. As counsel for the petitioning victims' families stated, based on extensive experience with the federal criminal justice system, "it was a clear and substantial deviation from normal criminal justice processes" for the Justice Department to take such a step. Id.
In the proceedings in the district court, the victims' families repeatedly called the Government's approach "unprecedented." See NPA Pet. 18 (collecting record citations). Neither the Government nor Boeing offered any precedent below.
Here again, I hope the Fifth Circuit will agree and remand the case for reasonable conferral about the unprecedented no-further-prosecution provision.
Did the District Court Treat the Families Unfairly in Assessing their Arguments Against Dismissal
My final argument concerns the district court's conclusion that it lacked the "authority" to do anything other than approve the Justice Department's dismissal motion. As I explain in my reply, the district court did not understand its full authority in this area:
As the victims' families explained at length in their NPA petition, in granting
the Government's motion to dismiss, the district court viewed its authority too
narrowly. See NPA Pet. 24-31. This Court reviews this legal issue de novo, as a trial
court necessarily "abuses its discretion when its ruling is based on an erroneous view of the law …." United States v. Age, 136 F.4th 193, 227 (5th Cir. 2025).As much as the parties attempt to wriggle out of the relevant caselaw, this Court has repeatedly held that the trial court can reject a motion to dismiss where it "has an affirmative reason to believe that the dismissal motion was motivated by considerations contrary to the public interest." United States v. Hamm, 659 F.2d 624, 631 (5th Cir. en banc 1981). To be sure, the district court could begin its review of this issue by presuming that the prosecutors acted in good faith. See United States v. Cowan, 524 F.2d 504, 514 (5th Cir. 1975). But the ultimate question for the district court was whether that presumption was "overcome by 'an affirmative reason to believe that the dismissal motion was motivated by considerations contrary to the public interest.'" United States v. Welborn, 849 F.2d 980, 984 (5th Cir. 1988) (quoting Hamm, 659 F.2d at 631).
Here, such affirmative reasons abounded. The district court found—as a finding of fact—that the families have made a "compelling" argument that the NPA "is contrary to the public interest." Op.8. Among other things, the district court found that the families were "correct that this agreement fails to secure the necessary accountability to ensure the safety of the flying public." Op.6. That chilling conclusion—standing alone—should have led the district court to deny dismissal.
But the district court also found that the Government had advanced an "unserious" argument that it needed to resolve the case rather than go to trial. Op.6. While the Government claimed "litigation risk," the district court observed that the Government possesses "a confession from Boeing, signed by the CEO and Chief Legal Officer," admitting the conspiracy charge. Id. And while an individual Boeing test pilot was acquitted in connection with the conspiracy, the trial court judge—who presided over that trial—noted that the defendant's central defense was that he "was a scapegoat for the broader and systematic failure of Boeing's corporate culture which led to the crashes." Op.6n.18.
On top of these already strong arguments, the district court should have also weighed in the balance two of the victims' families' strongest arguments: the no-further-prosecution provision argument and the dismissal purportedly "without prejudice" argument. See NPA Pet. 29-31. The Government's unprecedented ploy of contracting with Boeing for no-further-prosecution—even before the district court had ruled—was clearly contrary to the manifest public interest. Perhaps the district court thought that it could avoid this vital issue, because it was not allowed to "substitute its judgment for the prosecutor's determination" of the public interest. Op.7 (citing United States v. Salinas, 904 F.2d 936, 351 (5th Cir. 1982) (dicta, as discussed in NPA Pet. 27 n.9)). But the district court would not have been substituting its judgment on this point, but rather Rule 48(a)'s. The rule presupposes that the district court will have the opportunity to deny the motion to dismiss before the Government makes a binding agreement with the defendant—the "settled sequence of federal courts' authority" that Ryan relied on. 88 F.4th at 625. The parties do not respond to the victims' families' obvious point: That if this Court approves the no-further-prosecution stratagem here, then it will become the roadmap for all subsequent Rule 48(a) dismissal motions, essentially repealing Rule 48(a)'s "leave of court" requirement.
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Tomorrow, I have 20 minutes to make my case. The Government is represented by Connor Winn of the Justice Department's Criminal Division. Boeing is represented by Paul Clement of Clement and Murphy. They will have 20 minutes to respond. Of course, I hope that the Fifth Circuit agrees with my arguments and sets aside the district court's dismissal of the case.
