Late Friday, the Fifth Circuit ruled in an important Crime Victims’ Rights Act (CVRA) case. The case challenges the Boeing deferred prosecution agreement (DPA) connected with Boeing’s conspiracy to conceal safety issues surrounding its 737 MAX aircraft—a conspiracy that caused two 737 MAX crashes. Under the DPA, the Government and Boeing can move to dismiss the pending conspiracy charge against Boeing after the DPA concludes (in January). In its ruling, the Fifth Circuit held that the families who represent the victims killed in the two crashes could then challenge that dismissal motion. The ruling sets the stage for the families to continue their fight to hold Boeing accountable for its deadly conspiracy.
The case arises out of the crashes of two Boeing 737 MAX aircraft—crashes which killed 346 passengers and crew. The Justice Department later investigated Boeing for deliberately concealing safety problems with the 737 MAX. After the Department collected compelling evidence of Boeing’s concealment, the Justice Department and Boeing secretly negotiated a deferred prosecution agreement (DPA) covering the crashes. In January 2021, the Department filed conspiracy charges against Boeing and, immediately thereafter, the DPA. The DPA provided that if Boeing committed no new crimes over the next three years, then the Justice Department would move to dismiss the charges at the conclusion of the three-year period. The Justice Department, working with Boeing, illegally concealed the DPA from the victims’ families while they negotiated it.
After the DPA was filed, in December 2021, fifteen victims’ families challenged the DPA. I filed motions on their behalf, arguing that the DPA had been negotiated in violation of their CVRA rights—including in particular their right to confer with prosecutors. Ultimately, in October 2022, the federal district court judge handling the case (Judge Reed O’Connor) ruled that the Justice Department had violated the families’ rights in reaching the secret deal. But then, in February 2023, Judge O’Connor ruled, regretfully, that he could not enforce the victims’ families’ right to confer.
As authorized by the CVRA, I filed a petition with the Fifth Circuit, asking it to overturn Judge O’Connor’s ruling. Following oral argument in July, on Friday the Fifth Circuit ruled that the families’ petition was “premature.” The appropriate time for challenging the DPA, the Fifth Circuit concluded, was when the parties (the Justice Department and Boeing) make a motion to dismiss the charges under the DPA.
The Fifth Circuit began by overturning Judge O’Connor’s regretful conclusion that he lacked any power to enforce victims’ rights:
The Fifth Circuit then explained a parallel between the judicial authority that exists when the Government makes a motion to dismiss pursuant to a DPA and when it asks for dismissal of charges as part of guilty plea negotiations:
The Fifth Circuit found that its earlier ruling in In re Dean (5th Cir. 2008) provided a helpful analogy for resolving this case. In Dean, the Government and a corporate defendant secretly negotiated a plea deal in violation of crime victims’ rights—and the Fifth Circuit instructed that the district court should carefully protect the victims’ rights in subsequent proceedings. The same concern is present in this (the Boeing) case:
Against this backdrop, the Fifth Circuit concluded that the families’ petition challenging the DPA was “premature”—and the fact that the Boeing DPA had been negotiated illegally and in violation of crime victims’ rights should be considered at the next stage of the process:
The Fifth Circuit then dismissed the victims’ families’ petition—”without prejudice”—noting that it was “confident that the district court will uphold victims’ CVRA rights throughout the instant criminal proceedings, above all when, how, and if judicial approval is sought to resolve this case.”
Judge Clement concurred in the majority opinion and added an additional note about the importance of judicial enforcement of the CVRA:
In light of the Fifth Circuit’s decision, the case now effectively returns to the district court. If (as expected) the Justice Department moves to dismiss the conspiracy charge against Boeing, the effect of granting that motion would be (as the Fifth Circuit pointedly noted) that “no company, and no executive and no employee, ends up convicted of any crime, despite the Government and Boeing’s DPA agreement about criminal wrongdoing leading, the district court has found, to the deaths of 346 crash victims.” The families will strenuously object to any such resolution of the case, as it is impossible to see how such a result could be consistent with the public interest.