Late last week, the United States District Court for the Northern District of Texas sided with the government and Boeing and refused to block the deal reached over charges of criminal conspiracy arising out of the crashes of  Lion Air Flight 610 and Ethiopian Air Flight 320.

On January 7, 2021, the Government charged Boeing under 18 U.S.C. § 371 with conspiracy to defraud the Federal Aviation Administration’s (“FAA”) Aircraft Evaluation Group during the approval process for the 737 Max.  At the same time, the United States also entered into a deferred prosecution agreement (DPA) with Boeing, requiring Boeing to pay a criminal penalty of $243.6 million and $1.77 billion in compensation to airline customers.  The DPA also requires Boeing to establish an additional $500 million fund to pay compensation to the victims of the two plane crashes.  In exchange for these payments, the DPA immunizes Boeing from criminal prosecution, and the government agrees to dismiss the charges after three years if Boeing complies with all of the DPA’s conditions. 

However, after the agreement was reached, a number of the family members of victims from the two accidents filed a motion in federal court arguing that the DPA violated the Crime Victims’ Rights Act, 18 U.S.C. §3771, and that as a result, Boeing should be arraigned in court and that all or part of the DPA’s other terms should be rejected.  The Court ultimately agreed that the victims’ families were covered by the Crime Victims’ Rights Act and that the government negotiated the agreement in violation of the victims’ rights.  The Court then set the matter for additional briefing regarding the remedy.

After the ruling, the Justice Department had two meetings with the families of the victims and agreed that Boeing should be arraigned in federal court on the criminal charges.  Boeing was arraigned on January 26, 2023, during a three-hour hearing, at which thirteen members of the  victims’ families were allowed to speak. 

On February 10, 2023, the Court issued an opinion rejecting the victims’ remaining requests.  The Court held that, while the Act gives a number of rights to victims, and those rights were violated, the Court does not have the statutory or inherent authority to provide any of the remedies the victims sought. 

The Court held that the Justice Department’s authority to enter into DPAs comes from the Speedy Trial Act.  The Court’s obligation to review the terms of the DPA are limited to determining whether the DPA is a sham intended to avoid the time constraints for prosecution under the Speedy Trial Act.  The Court held that it has no authority to reject a DPA simply because the Court disagrees with its terms, and that as a result, it also lacks the authority to modify the terms of a DPA. 

The Court also rejected arguments that it has the “inherent authority” to grant the requested relief.  The Court opined that even if the government acted in bad faith, separation of powers issues would prevent it from acting.  In any event, the Court found that, “regrettably, legal error on the Government’s part is what occurred here, not bad faith or impropriety that warrants the Court’s acting to preserve judicial integrity.”  In addition, the court found that because the victims did ultimately get the opportunity to consult with the Justice Department and Boeing was subsequently arraigned, the victims’ rights were “given meaningful effect.”

While the Court rejected the procedural claims of the families, it was not shy about expressing its opinion on the merits of the DPA or of Boeing’s conduct.  The Court reiterated its finding that “but for Boeing’s criminal conspiracy 346 people would not have lost their lives in the crashes (Dkt. 116)” and that “this case has tragically become the deadliest corporate crime in our nation’s history.”

The Court concluded that it:

has immense sympathy for the victims and loved ones of those who died in the tragic plane crashes resulting from Boeing’s criminal conspiracy.  Had Congress vested this Court with sweeping authority to ensure that justice is done in a case like this one, it would not hesitate.  But neither the Speedy Trial Act nor this Court’s inherent supervisory powers provide a means to remedy the incalculable harm that the victims’ representatives have suffered.  And no measure of sympathy nor desire for justice to be done would legitimize this Court’s exceeding the lawful scope of its judicial authority. 

With the Court’s ruling, this phase of the 737 Max saga draws to a close.  However, lawyers for the victims’ families have already indicated that they will appeal to the United States Court of Appeals for the Fifth Circuit, and “are optimistic our appeal will vindicate the families’ rights in this case.”   

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