Tomorrow Judge O'Connor of the U.S. District Court for the Northern District of Texas will consider an important issue about how Federal Rule of Criminal Procedure 48(a) operates. The Rule allows federal prosecutors to move to dismiss a previously filed criminal charge. But the motion must be approved by the district judge handling the case. In United States v. Boeing, the prosecutors handling that case have already signed a non-prosecution agreement (NPA) with Boeing, refusing to further prosecute a criminal conspiracy charge against Boeing—even before Judge O'Connor has ruled on the pending motion to dismiss. On behalf of some of the victims' families harmed by Boeing's conspiracy, I have objected to this novel move. Tomorrow, I will argue that Judge O'Connor should reject the Government's ploy and preserve the ability of federal judges to effectively review dismissal motions.
I've blogged about the Boeing criminal case a number of times before, including here, here, and here. In a nutshell, Boeing lied to the FAA about the safety of its 737 MAX aircraft. The Justice Department charged Boeing with conspiracy for these lies, but then immediately entered into a deferred prosecution agreement (DPA) to resolve the criminal case. After Boeing breached its DPA, the Department proposed a guilty plea with Boeing to resolve the matter. Judge O'Connor rejected the plea deal last December. But, most recently, at the end of May, the Department backtracked and signed an NPA with Boeing. The NPA includes a provision in which the Department agreed not to further prosecute Boeing (the "no-further-prosecution provision"). After signing its NPA with Boeing, the Department filed a motion to dismiss the pending conspiracy charge under Rule 48(a). That dismissal motion is now pending before Judge O'Connor. He has set a hearing on the issue for tomorrow.
I believe that the Department's subterfuge would, if approved, essentially gut Rule 48(a)'s judicial review requirement. As I argued in my brief:
