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

Yesterday, I filed three motions to challenge the Justice Department’s secret negotiations with Boeing for a deferred prosecutor agreement (DPA). These agreements were in relation to the Boeing 737 MAX crash. The Crime Victims’ Rights Act (CVRA) requires that the Department grant victims the “reasonable rights to confer” in any case. My motions were filed on behalf of 15 families.  In my introduction, I explain why the Department’s covert agreement conflicts with the CVRA. (Some citations have been omitted).

It is clear that Defendant Boeing conspired over more than 2 years to interfere with Federal Aviation Administration’s review of the safety features in the Boeing 737 MAX. Boeing knew the FAA would not report the safety problems with the 737 MAX, which could have cost it tens or millions of dollars. So they covered them all up. 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 a proximate manner resulted into two horrible plane crashes which killed 346 passengers.

In this context, it would be reasonable to assume that the government would have given priority to conferring with victims’ families regarding its investigation and eventual prosecution. Yet, in its extensive investigation of Boeing’s crimes the Government chose to keep the truth from the victims’ families. 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. A few months later, when the DPA was filed at this Court and executed, one of Government’s lead lawyers joined Boeing’s legal firm and the exact same team that represented Boeing in 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. . . and by a system of justice that did not provide a safe environment for them. 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.” Re Dean 527 F.3d 391, 395 (5th Cir. 2008) (emphasis added). The victims also have the right to this “before any plea agreement is reached.” It also gives victims and their families the right to receive “timely notice of” the DPA.Look! 18 U.S.C. § 3771(a)(9). The CVRA also promises victims they will be treated fairly and with dignity. 18 U.S.C. § 3771(a)(8). When “a victim of crime who is”: . . deceased, . . . Family members[]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 not making an effort to consult with the hundreds of loved ones who lost their loved ones 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.

Second, it asks the Court for its “supervisory power” over DPAs that have been filed on its docket in order to increase Boeing’s accountability. Third, the Court is asked to publically arraign Boeing for the conspiracy felony (conspiracy charge) it has been charged with.

The secrecy of government in its sweetheart agreement with Boeing has striking similarities to that of Jeffrey Epstein’s sweetheart deals, about which I have written a lot.  Check outHere, 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. It should admit openly that it, along with Boeing, violated the 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.