Families of Boeing crash victims urge Fifth Circuit to overturn dismissal of criminal case

(CN) — The families of people who died in a pair of Boeing 737 Max plane crashes asked a Fifth Circuit panel Thursday to void an agreement between federal prosecutors and the aerospace company to drop a criminal fraud case, arguing their rights as crime victims hadn’t been respected.

Prosecutors had accused Boeing of misleading federal regulators about the safety of the Max’s flight control system, which played a key role in a pair of deadly plane crashes in 2018 and 2019 that killed a combined 346 people. But last year, the government reached a non-prosecution agreement with Boeing where it agreed to drop the case in exchange for Boeing paying over $1.1 billion in fines, victim compensation and safety improvements.

Some of the crash victims’ family members objected to having the case dismissed, and the trial judge, U.S. District Judge Reed O’Connor, also expressed concerns. The George W. Bush appointee said he agreed with the families that, by allowing Boeing to pick its own compliance consultant rather than be subject to independent monitoring, the NPA “fails to secure the necessary accountability to ensure the safety of the flying public.”

Despite his reservations, however, O’Connor ultimately granted leave to dismiss the case, finding that because the prosecution had not acted in bad faith, had “given more than mere conclusory reasons for its dismissal” and had met its obligations under the Crime Victims’ Rights Act by conferring with the victims’ families before reaching the NPA, he was powerless to second-guess the prosecutors’ judgment.

“Poor discretion may not be countered with judicial overreach,” O’Connor wrote. “The court acknowledges that it does not have the authority to deny leave because it disagrees with the government that dismissing the criminal information in this case is in the public interest.”

However, attorney Paul Cassell, representing 31 families of crash victims, told the Fifth Circuit panel that the families’ rights under the Crime Victims’ Rights Act, which gives victims of federal crimes “the reasonable right to confer” with the prosecution, were violated, as the government had not conferred with them before entering into a prior deferred prosecution agreement in 2021.

Although that agreement was invalidated when the government determined in 2024 that Boeing had failed to comply with the terms of the DPA, Cassell told the panel that the DPA “infected” the 2025 NPA. He argued that important aspects of the NPA, such as the applicable sentencing guideline range, which was used to determine the amount Boeing would have to pay, came from the DPA. He said the government’s meetings with the families before it entered into the NPA were merely “after-the-fact conferrals” that occurred “after these families lost their opportunity to change the trajectory of this prosecution.”

Cassell said the panel should vacate the NPA or, at minimum, remand the case back to O’Connor to allow the families to show that the NPA “is essentially the fruit of the poisonous tree.” Doing otherwise, he said, would render the CVRA “a dead letter.”

But Justice Department attorney Connor Winn told the panel that the references to the DPA in the NPA are “predominantly factual citations just to acknowledge the fact that there was a DPA.” He rejected the notion that there is “anything left of the DPA” and said the government’s determination that Boeing had breached the DPA “returned this case to square one.”

“Following that breach determination, the government could have brought any charge against Boeing that it thought was appropriate,” Winn said. “It could have taken the company to trial. It could have pursued any sentence that it thought was right, and not only that, it then conferred with the crash victim families about these matters repeatedly.”

He said that although some of the victims’ families may disagree with the government’s decision to enter into the NPA, that doesn’t mean their rights were violated, as the CVRA “gives victims a voice, not a veto.”

Winn also argued courts do not have the authority to overturn an NPA, as “it’s an out-of-court agreement between the executive branch and a criminal defendant.”

U.S. Circuit Judge Stuart Duncan asked what a court could do if it found that the government had violated the CVRA by failing to confer with victims.

Winn responded that courts can’t set aside an NPA, but if a court were to find that prosecutors negotiated in bad faith or failed to follow victims’ conferral rights, the court could make referrals to bar organizations or to the Justice Department’s Office of Professional Responsibility to have the prosecutors disciplined.

“What it cannot do is it cannot invade the constitutional separation of powers, nor can it ignore Congress’ statutory command in the CVRA that nothing in that act shall impair prosecutorial discretion,” Winn said.

U.S. Circuit Judge Leslie Southwick, a Bush appointee, and Kurt Engelhardt, a Donald Trump appointee, joined Duncan, also a Trump appointee, on the panel.