Can Federal Prosecutors Avoid Judicial Review of Dismissal Motions by Agreeing in Advance With a Defendant Not to Prosecute?

Currently before Judge O’Connor in the long-running criminal prosecution of Boeing is the Justice Department’s recently filed motion to dismiss. I’ve blogged about this case many times before, including  here, here, and here. Boeing is facing a federal conspiracy charge, filed in January 2021, for defrauding the FAA about the safety of Boeing’s 737 MAX aircraft. Late yesterday, I filed an opposition to the motion to dismiss for fifteen Boeing 737 MAX crashes victims families. The opposition not only presents strong objections to the Department walking away from the prosecution, but also presents an important separation of powers question about whether courts will continue to have the power to review prosecutors’ motions to dismiss.

Some background about dismissal motions is helpful helpful here: Under Federal Rule of Criminal Procedure 48(a), a dismissal requires “leave of court.” This judicial review has been part of the rules for more than 80 years and is designed to check potential prosecutorial abuses. It is standard practice for federal courts to review dismissal motions, and even hold hearings on them if there is some question about the grounds for dismissal. VC readers may recall my (and  my co-bloggers) earlier posts, for example, on the dismissal motion in the Mayor Adams case.

In yesterday’s filing, my lead argument opposing the pending motion to dismiss the Boeing charge concerns an unprecedented maneuver by the Justice Department. Before filing its motion to dismiss with the Court, the Justice Department negotiated with Boeing a non-prosecution agreement (NPA). The parties included in their NPA a provision in which the Department agreed not to further prosecute Boeing. This provision took effect several weeks ago, even before Judge O’Connor has had an opportunity to rule on the currently pending motion to dismiss.

In my opposition for the victims’ families, I explain why this subterfuge would destroy Rule 48(a)’s judicial review requirement:

If this Court approves the parties’ maneuver in this widely publicized case, then this unprecedented approach will likely become the blueprint for all future dismissal motions in federal criminal prosecutions. Before filing a motion to dismiss under Rule 48(a), the Government and the defendant will simply enter into a non-prosecution agreement containing the no-further-prosecution language found here. Then the Government will file its dismissal motion, and any action that the Court might take thereafter becomes essentially irrelevant. For example, even if the Court were to provide a perfectly good (but previously unconsidered) reason for the Government to move forward with prosecuting the case, the Government has already committed not to do so.

Against this backdrop, approving the Government’s and Boeing’s audacious scheme would effectively block Rule 48(a) from achieving the purposes it was designed to serve. The Rule provides judicial review of prosecutors’ dismissal motions so that “[t]he public and crime victims, not to mention the government and defendants, necessarily and correctly see accountability with Article III from start to finish.” Ryan, 88 F.4th at 625 n.9. It has long been recognized that, by adopting Rule 48(a), “the Supreme Court intended to … vest[] in the courts the power and duty to exercise a discretion for the protection of the public interest ….” Id. at 628 n.12 (citing Cowan, 524 F.2d at 511). As a result, “[p]ublic perception and confidence in the criminal justice system assume that when criminal charges are submitted for judicial resolution, the courts vigilantly will enforce the public interest ….” Id. at 626.

The Government and Boeing’s private agreement to evade any judicial protection of the public interest is “‘clearly contrary to manifest public interest public interest’ as assessed ‘at the time of the [motion] to dismiss.’” Id. at 627 (quoting Hamm, 659 F.2d at 629). Simply put, it cannot be in the public interest to eliminate the judiciary’s public interest review. Tautologically, the very purpose of public interest review is to protect the public interest. For whatever reason, the Government and Boeing may find that review distasteful. But it is this Court’s obligation to enforce Rule 48(a)’s mandate.

This maneuver also violated the families’ rights under the Crime Victims’ Rights Act (CVRA). My brief explains that during two meetings with the families, the Justice Department suggested that it was going to allow Judge O’Connor to consider the motion to dismiss before the Department entered into an agreement blocking further prosecution of Boeing:

By deceptively creating the impression that it would proceed through the normal course of allowing a judicial decision on its Rule 48(a) motion to dismiss, the Government deprived the victims’ families of their “reasonable right to confer with the attorney for the Government in the case.” 18 U.S.C. § 3771(a)(5). While the Government need not confer about every minor detail of a proposed resolution, the no-further-prosecution provision is a staggeringly important and unprecedented provision that the Government should have disclosed and discussed with the victims’ families. The “reasonable right to confer” would necessarily encompass such an important provision, particularly where the victims’ families and their counsel could—and did—assume that the Justice Department would not maneuver to avoid Rule 48(a) scrutiny. For the same reasons, concealing from the victims’ families this shift from normal processes violated the families CVRA right to be “treated with fairness.” 18 U.S.C. § 3771(a)(8).

I also advance other arguments against the motion to dismiss.

One of the most significant problems with the dismissal is that the Department is proposing that the motion to dismiss be “without prejudice.” Dismissal without prejudice would purportedly allow the Department to re-file the criminal charge if Boeing failed to live up to its NPA obligations, particularly its obligations to improve its corporate compliance and safety measures. But Boeing’s obligations in the accompanying NPA are unenforceable. The parties have neglected to inform the Court that the underlying statute of limitations on Boeing’s conspiracy crime has now expired. Accordingly, the Government’s claim that a dismissal  would somehow be “without prejudice”—i.e., would leave it free to re-file the charge against Boeing and pursue prosecution—is a sham.

I also argue that granting the motion to dismiss would exempt Boeing from any independent monitoring of its corporate compliance and safety efforts. Last December, Judge O’Connor rejected a proposed plea agreement as against the public interest where that agreement failed to provide for adequate monitoring of Boeing. The proposed NPA backtracks from even those insufficient monitoring measures and thus is, by definition, even further contrary to the public interest than last year’s now-rejected plea deal.

I also argue that the Department and Boeing are ignoring Judge O’Connor’s previous ruling that Boeing directly and proximately caused the deaths of 346 passengers and crew in the two Boeing 737 MAX crashes. The parties are now asking him to approve the motion to dismiss because it allegedly secures the maximum possible fine against Boeing. But their arguments ultimately rest on inaccurate sentencing guidelines calculations that assume Boeing’s crime was victimless—contrary to the Court’s previous ruling. Rather than lend its approval to the parties’ misleading calculations, Judge O’Connor should deny the motion to dismiss for this reason as well.

I also explain that the proposed motion to dismiss rests on “additional victim compensation” payments by Boeing that would be paid directly to the victims’ families. These payments appear designed to persuade the families to support the NPA and thus allow the company to essentially buy its way out of a criminal conviction. I argue for the victims’ families I represent that the Court should not endorse such a clear violation of the fundamental principle that rich and poor alike are to be treated equally in the administration of criminal justice.

In terms of next steps in the case, the Justice Department and Boeing have an opportunity to reply. And then the issue of whether to dismiss the criminal charge against Boeing for the “deadliest corporate crime in U.S. history” will be squarely before Judge O’Connor.

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