Government lawyers admitted the investigation into the Boeing 737 Max crashes didn’t turn up evidence of criminal wrong-doing by high-level company executives, rejecting a plea from family members of crash victims for more accountability.
Justice Department lawyers defended a controversial deferred plea agreement with Boeing Tuesday in federal court in Fort Worth that resulted in $2.5 billion in fines but in which the government also declined to prosecute Boeing executives for their role in the two 737 Max crashes that killed 346 people in Indonesia and Ethiopia.
The family members of a dozen victims are asking District Judge Reed O’Connor to toss the agreement with Boeing or at least to set aside the non-prosecution deal for executives. They say their rights were violated under a federal law that requires crime victims to be notified and conferred with before the government enters into a deal such as a deferred plea agreement.
O’Connor did not make an immediate ruling on the issue.
Lawyers for the government and Boeing defended the deal as seven family members of 737 Max crash victims watched from the gallery, hoping that someone would be held accountable for the cover-up at Boeing that defrauded aviation regulators and airlines over the flawed software systems that led to the accidents.
U.S. Assistant Attorney Jerrob Duffy started his arguments by apologizing to the family members of crash victims on behalf of the Justice Department, but said it stands by the agreement with Boeing.
“We did not find evidence of high-level criminal offenses by high-level officials,” Duffy said. “The government did not come across facts during the course of its investigation that is believed to be prosecutable.”
Duffy also said the Justice Department was wrong for telling family members of crash victims in 2019 that there was no criminal investigation into Boeing and that it should have kept them updated, even though there was no legal obligation to do so. Attorney General Merrick Garland met with those family members in January to talk about the agreement with Boeing.
The government failed to prosecute the only individual it brought charges against over the 737 Max, a chief technical pilot named Mark Forkner who was acquitted on fraud charges by a jury in March in the same court. Even though Forkner’s lawyers say he was a scapegoat for a larger corporate conspiracy, no Boeing executive has been held criminally accountable for the 737 Max crisis.
The two 737 Max crashes led to a two-year grounding of the jets that cost airlines including Fort Worth-based American Airlines and Dallas-based Southwest Airlines hundreds of millions of dollars. It also caused a reckoning at the Federal Aviation Administration over how it certifies planes.
The crisis did lead to Boeing parting ways with CEO Dennis Muilenburg and commercial airplanes division head Kevin McAllister.
Government lawyers say they could pursue new charges against Boeing employees and executives if additional evidence is discovered, but not for evidence the government collected as part of its investigation up to the point of the January 2021 deferred prosecution deal.
Lawyers for the family members of victims want to reopen the case because they want to see all the evidence that the government collected and weigh whether or not the deal between Boeing and prosecutors was fair.
“The victims are ready and willing to prove in an evidentiary hearing that Boeing’s conspiracy harmed 345 victims on those flights,” said Paul Cassell, a University of Utah law professor representing the family members of 12 of the crash victims.
The Justice Department’s lawyers have argued that the people who died in the two crashes were not crime victims for the purposes of the case because of the charges of fraud for defrauding the FAA and airlines.
Boeing’s attorneys argued that it would be impossible to undo the agreement because Boeing has already distributed money from a $500 million fund for the family members of victims as well as $1.77 billion to airlines.
“Boeing has performed and satisfied its obligations for a year and a half,” said Benjamin Hatch, an attorney for Boeing.
Family members of 737 Max victims came from as far away as France to see the court hearing, part of a three-year effort to find justice for the 737 Max crashes, said Nadia Milleron, whose daughter Samya Stumo died at age 24 in the Ethiopian Air crash in 2019.
“There is still evidence out there that we haven’t seen about the cause of the crashes,” Milleron said. “There is still a perpetual risk to the public today.”
