A Crime Victims’ Rights Act Challenge to the Boeing 737 MAX Crashes Deferred Prosecution Agreement

Yesterday I filed three motions against the Secret Negotiation of a Deferred Prosecution Agreement (DPA), between the Justice Department and Boeing regarding the Boeing 737 MAX accidents. These three motions were filed in support of fifteen victims’ families. They rely on the Crime Victims Rights Act (CVRA), which allows victims to have the “reasonable privilege to confer with” prosecutors.  In my introduction, I explain why the Department’s covert dealing with the CVRA is not acceptable (some citations have been omitted).

It’s undisputed that Defendant Boeing conspired for over two years to hinder, obstruct and interfere with Federal Aviation Administration’s assessment of safety features on the Boeing 737 MAX. Boeing inadvertently covered up safety problems with the 737 MAX, knowing that it could incur tens of thousands of dollars if the FAA reported them. Boeing’s criminal conspiracy has tragic consequences: According to the DPA’s admitted Statement of facts, Boeing concealing safety issues from FAA directly and in proximately led to two horrible plane crashes which killed 346 passengers.

This background would suggest that the Government would have prioritised conferring the victims’ families on its investigation into the case and ultimately prosecuting them. During its lengthy investigation into Boeing’s criminal acts, however, it chose not to confer with victims’ families but instead, hidden what the Government was doing. Instead of reaching out to the families of crime victims, the Government devised an advantageous deferred prosecution arrangement with Boeing. However, the government did more than hide the investigation from victims’ families. The Government also affirmatively misled many victims by denying that any ongoing criminal investigation into Boeing even existed—as it collaborated with Boeing to resolve that investigation. Moreover, a few months after this Court filed the DPA, the Government’s lead attorney who approved it joined Boeing’s leading law firm, specifically the same legal team that represented Boeing during the criminal case.

The Crime Victims Rights Act was violated when the government concealed negotiations from families of Boeing victims. The CVRA was enacted by Congress because the Congress found that victims were kept “in the dark” by too many prosecutors. . . an unjust court system. 150 CONG REC. 7296 (Apr. 22, 2004 (colloquy from Sens. Feinstein and Kyl). Victims have the “reasonable rights to confer” with lawyers for the Government. 18 U.S.C § 3771(a)(5). By proceeding in secrecy and with deceit, the Government ignored binding Fifth Circuit precedent that, in enacting the CVRA, “Congress made the policy decision—which [courts] are bound to enforce—that the victims have a right to inform the plea negotiation process by conferring with prosecutors.” The Dean. 527 F.3d 391, 395 (5th Cir. 2008) (emphasis added). Victims have this right before a plea deal is reached. This act guarantees the rights of victims’ family members to be “timely informed” about DPA.Look! 18 U.S.C. § 3771(a)(9). CVRA guarantees victims that they can be “treated with fairness, with respect for their dignity and other human rights.” 18 U.S.C. § 3771(a)(8). If “a victim of crime who is”: . . deceased, . . . Families[]Any other person appointed by the court as appropriate, can assume the victim’s rights. [the CVRA].” 18 U.S.C. § 3771(e)(2)(B).

This is where the Government violated every right by failing to consult with hundreds family members whose loved ones died in the Boeing plane crashes. The Government also misled victims’ families, falsely claiming that Boeing was not under criminal investigation. Victims cannot be deceived, no matter what the Government does under the CVRA.

In the second motion, the Court is asked to exercise its “supervisory powers” on the DPA filed in its docket. This will allow Boeing to be held accountable. A third motion requests that the Court publicly indict Boeing on the conspiracy (felony) charge it faces.

There are striking parallels between the government’s secretiveness in the negotiations for the sweetheart contract with Boeing and the secrecy surrounding the sweetheart arrangement with Jeffrey Epstein that I blogged about several times.  Look!Here, here and here. Given the fact that the covert deal with Epstein was so widely condemned, it is hard for me to understand why the Department surreptitiously  cut a similar deal with Boeing here.

This victims’ rights action should be handled differently by the Department than the Epstein plea agreement challenge. The Department must admit it in writing that Boeing and the Department violated CVRA. In order to provide a remedy, the Department must work closely with victims’ families.

Other media coverage can be found here, here and here.

Notice: A typo was corrected in the opening paragraph.