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 the
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