In Re: Naoise Ryan

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

____________ Fifth Circuit

FILED

No. 23-10168 December 15, 2023

____________ Lyle W. Cayce

Clerk

In re Naoise Connolly Ryan; Emily Chelangat Babu;

Joshua Mwazo Babu; Catherine Berthet; Huguette

Debets; Bayihe Demissie; Luca Dieci; Sri Hartati;

Zipporah Muthoni Kuria; Javier de Luis; Nadia

Milleron; Michael Stumo; Chris Moore; Paul Njoroge;

Yuke Meiske Pelealu; John Karanja Quindos; Guy Daud

Iskandar Zen S; Polskie Linie Lotnicze Lot S.A.;

Smartwings, a.s.,

Petitioners.

______________________________

Petition for a Writ of Mandamus

to the United States District Court

for the Northern District of Texas

USDC No. 4:21-CR-5-1

______________________________

PUBLISHED ORDER

Before Clement, Southwick, and Higginson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Petitioners, representatives of plane-crash victims and foreign air-

lines, seek a writ of mandamus directing the district court to afford them rem-

edies pursuant to the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C.

§ 3771.

No. 23-10168

I.

On October 29, 2018 and again on March 10, 2019, relatively new Boe-

ing 737 Max planes crashed shortly after takeoff. In both Lion Air Flight 610

and Ethiopian Airlines Flight 302, the crashes tragically claimed the lives of

all passengers and crew onboard. In the following uncertainty regarding the

cause of the crashes, all 737 Max aircraft were grounded in the United States.

Subsequently, investigations revealed that a software function, known

as the Maneuvering Characteristics Augmentation System (“MCAS”), had

activated during both flights. MCAS, which was added to the 737 Max to ac-

count for the aircraft’s design and counterbalance its particular aerodynam-

ics, causes the nose of the airplane to pitch downwards when activated. Ini-

tially, MCAS was intended to activate only in circumstances outside of what

would be considered the aircraft’s normal operating envelope (i.e., during

wind-up turns of high speed of Mach 0.6 to Mach 0.8). It was with that un-

derstanding that the Federal Aviation Administration’s (FAA) Aircraft Eval-

uation Group (“AEG”), the subgroup responsible for determining the mini-

mum level of training required of U.S.-based pilots to fly a new aircraft model

(known as “differences training”), provisionally authorized the second least-

intensive level of training (Level B). 1

But the design was later changed, such that MCAS could activate in

speeds as low as Mach 0.2, which included takeoff and landing. Boeing inten-

tionally withheld this information from the AEG. As a result, the AEG made

_____________________

1

Differences training—the “training required for U.S.-based airline pilots to fly a

new version of an aircraft”—ranges from Level A (least intensive) to Level E (most

intensive), with the training becoming more expensive as it becomes more intensive. Level

B training includes computer-based training that can be completed on a tablet; whereas

Level D training requires full-flight simulator training that might involve traveling to

wherever that simulator was offered. The difference between these training levels could be

stark—including amounting to a cost differential of “tens of millions of dollars.”

2

No. 23-10168

its final report that included the Level B differences training for the 737

Max—and made no mention of MCAS. Due to standard industry practice of

reliance upon the FAA’s guidance, this led to global adoption of equivalent

training standards and materials, meaning that pilots did not receive adequate

information or training regarding MCAS.

The Department of Justice (“DOJ”) Criminal Fraud Section (“Fraud

Section”) was integral in these investigations. Following indications in the

news that the DOJ was investigating, a representative (Thomas Gallagher) of

the Flight 302 crash victims’ families reached out to the DOJ to secure a

meeting. But the DOJ’s Victims’ Rights Ombudsman, Marie A. O’Rourke,

responded on February 20, 2020 that “[t]he FBI ha[d] advised . . . that they

do not have a criminal investigation into this crash, nor are they aware of any

open cases at the Department of Justice.” 2 The Ombudsman further stated

that “[i]f criminal charges are filed at some point, victims will be advised of

that and notified of their rights under the CVRA.”

On January 7, 2021, the Government charged Boeing by information

with conspiracy to defraud the United States under 18 U.S.C. § 371, and sim-

ultaneously filed in federal court a Deferred Prosecution Agreement

(“DPA”), an agreement between Boeing and the Government. 3 In the DPA,

Boeing admitted to a statement of facts, accepted responsibility for the acts

_____________________

2

Gallagher also telephoned the FBI Victims’ Witness Office a day later, and the

victim specialist who returned his call, Katie McCabe, also was not aware of any FBI

investigation.

3

The criminal information was filed by the then-Acting Chief of the Fraud Section,

along with the then-United States Attorney for the Northern District of Texas. The DPA

was agreed to by those same two government attorneys, along with the President of Boeing

and Boeing’s counsel. However, neither of those two government lawyers is likely to

participate for the Department of Justice in the ultimate criminal-case resolution as both

have since left government service.

3

No. 23-10168

charged, and agreed to abide by several conditions that would be monitored

by the Fraud Section, including the payment of $1.77 billion in compensation

to airline customers and the establishment of a $500 million fund specifically

for the heirs, relatives, and beneficiaries of those who died in the two airplane

crashes. 4 In exchange, and only after Boeing’s successful compliance with

the DPA’s conditions, the Government agreed it would request court dismis-

sal of Boeing’s felony charge, with prejudice, and would provide a conditional

release from criminal prosecution for conduct described in the DPA. In the

DPA, Boeing “acknowledges the filing of the one-count Information,” and

throughout acknowledges that the criminal prosecution commenced in court

could proceed to final resolution in court.

Because they had been neither informed nor consulted before Boeing

was charged in a single felony count, and also because they were neither in-

formed nor consulted before the Government and Boeing agreed to the pos-

sibility that that charge would be dismissed, representatives of the crash vic-

tims’ families (“victims’ families”) filed suit on December 16, 2021, alleging

that their rights under the CVRA had been violated. The CVRA rights that

they alleged had been violated included “[t]he reasonable right to confer with

the attorney for the Government in the case,” 18 U.S.C. § 3771(a)(5); “[t]he

right to be treated with fairness and with respect for the victim’s dignity and

privacy,” 18 U.S.C. § 3771(a)(8); and “[t]he right to be informed in a timely

manner of any plea bargain or deferred prosecution agreement.” 18 U.S.C.

§ 3771(a)(9).

Soon afterward, in January 2022, the Government had several meet-

ings with representatives of the victims’ families, but decided to stand by the

_____________________

4

The DPA noted that, although Boeing was uncooperative for the initial six

months after the investigation began, it ultimately assisted by voluntarily and proactively

identifying relevant and significant evidence, for which it received “partial credit.”

4

No. 23-10168

DPA as it had been structured. The victims’ families therefore maintained

their suit, in which they requested the district court grant a host of remedies

“for Boeing’s illegal behavior and the illegal agreement,” including:

1. [A]n order directing the Government to meet and confer

with the victims’ families about its evidence against Boeing

and its decision to grant Boeing immunity from further

criminal prosecution;

2. An order directing the Government to provide to the vic-

tims’ families its documents and related evidence of Boe-

ing’s crimes;

3. Exercising the Court’s supervisory powers over the DPA;

4. Requiring that Boeing appear for a public arraignment and

that the victims be heard concerning appropriate conditions

of release during the term of the DPA;

5. An order that the DPA’s “immunity” provision be excised,

permitting the victim families to exercise their CVRA right

to confer with prosecutors about pursuing further criminal

prosecution of Boeing;

6. An order that the victim families be permitted to confer

with prosecutors about other ways to hold Boeing account-

able for its crimes beyond the provisions in the existing

DPA;

7. A referral of the Government’s illegal behavior in reaching

the DPA to appropriate investigative authorities, including

the House and Senate Committees with authority over the

issue and the Department of Justice’s Office of Professional

Responsibility; and

8. All other appropriate remedies to protect the victims’ fam-

ilies’ rights and assure transparency and accountability in

this criminal case.

The Government opposed on several grounds—including, initially,

on the ground that the crash victims were not “crime victims” under the

5

No. 23-10168

CVRA. In its First Opinion and Order in the matter, the district court iden-

tified the relevant offense for the purposes of the CVRA as conspiracy to de-

fraud the United States, and scheduled an evidentiary hearing on the issue of

whether the victims suffered direct and proximate harm from that charged

conspiracy. After this hearing, which occurred over the course of two days

on August 5, 2022 and August 26, 2022, the district court found in its Second

Opinion and Order that the victim’s families had satisfied their burden in es-

tablishing both direct and proximate causation, and therefore had standing to

assert rights under the CVRA. But it left open the question of what remedy,

if any, could be afforded.

On January 19, 2023, the district court granted the victims’ families

motion for a public arraignment of Boeing, which occurred on January 26,

2023.

On February 9, 2023, after considering a round of supplemental brief-

ing on remedies, the district court found in its Third Opinion and Order—

the subject before us—that it had no choice but to deny the victims’ families

requested relief. In particular, the district court found that it had no statutory

authority (via the Speedy Trial Act (“STA”)) or inherent supervisory au-

thority to exercise substantive supervision over the DPA. It also declined the

victims’ families’ requests to order the Government to turn over its Boeing

investigation evidence and DPA negotiation history and to refer the DOJ to

investigative authorities, finding that neither was warranted based on either

the law or the facts before it. Ultimately, the district court concluded:

This Court 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

6

No. 23-10168

provide a means to remedy the incalculable harm that the vic-

tims’ representatives have suffered. And no measure of sym-

pathy nor desire for justice to be done would legitimize this

Court’s exceeding the lawful scope of its judicial authority.

Separately, after the district court’s Second Opinion and Order deem-

ing the crash victims to be crime victims under the CVRA, foreign airline

carriers Polskie Linie Lotnicze LOT S.A. (“LOT”) and Smartwings, A.S.

(“Smartwings”) (together, the “Subsequent Movants” 5), filed motions for

findings that their CVRA rights had been violated and seeking appropriate

remedies. 6 In its Third Opinion and Order, the district court denied the Sub-

sequent Movants’ motions for recognition as crime victims and associated

remedies, finding that they were barred by laches.

II.

Enacted in 2004, the CVRA details a number of rights afforded to

crime victims, charges the government to use “best efforts” to accord those

rights, and allows crime victims or their lawful representatives to assert those

rights in federal court. 18 U.S.C. § 3771(a), (c), (d). In turn, district courts

“shall ensure that the crime victim is afforded the rights described” in the

CVRA. 18 U.S.C. § 3771(b)(1). If relief requested under the CVRA is denied

by a district court, movants may “petition [a] court of appeals for a writ of

mandamus” pursuant to 18 U.S.C. § 3771(d)(3). In re Dean, 527 F.3d 391,

394 (5th Cir. 2008).

_____________________

5

Though additional family members of fifty-five individuals who died in the Lion

Air and Ethiopian flight crashes also filed similar motions, unlike LOT and Smartwings,

they did not file a mandamus petition and therefore their claims are not analyzed here.

6

This included, in a motion by Smartwings, a request for an accounting of the

airline compensation amount established pursuant to the DPA.

7

No. 23-10168

In evaluating whether the district court erred, the CVRA instructs us

to “apply ordinary standards of appellate review.” 18 U.S.C. § 3771(d)(3).

Thus, we review the district court’s legal conclusions de novo, its factual

conclusions for clear error, and its discretionary judgments for abuse of dis-

cretion. See In re Doe, 57 F.4th 667, 672-73 (9th Cir. 2023) (citing In re Wild,

994 F.3d 1244, 1254 n.10 (11th Cir. 2021) (en banc)).

III.

A.

Before us are petitions from both the victims’ families and LOT. In

their mandamus petition, the victims’ families ask that the conditional-re-

lease provisions for Boeing be excised from the DPA and also reiterate their

request for other remedies “to enforce their CVRA rights.”

We begin by noting general accord with the district court’s holding

that courts lack authority to exercise substantive review over DPAs. “It is a

bedrock principle of our system of government that the decision to prosecute

is made, not by judges or crime victims, but by officials in the executive

branch. And so it is not the province of the judiciary to dictate to executive

branch officials who shall be subject to investigation or prosecution.”

Lefebure v. D’Aquilla, 15 F.4th 650, 654 (5th Cir. 2021); see also United States

v. Fokker Servs. B.V., 818 F.3d 733, 737 (D.C. Cir. 2016) (“The Constitution

allocates primacy in criminal charging decisions to the Executive Branch.

The Executive’s charging authority embraces decisions about whether to in-

itiate charges, whom to prosecute, which charges to bring, and whether to

dismiss charges once brought. It has long been settled that the Judiciary gen-

erally lacks authority to second-guess those Executive determinations, much

less to impose its own charging preferences. The courts instead take the pros-

ecution’s charging decisions largely as a given, and assume a more active role

8

No. 23-10168

in administering adjudication of a defendant’s guilt and determining the ap-

propriate sentence.”).

In light of the respective roles of the Executive and the Judiciary,

which render “judicial authority . . . at its most limited when reviewing the

Executive’s exercise of discretion over charging determinations,” Fokker,

818 F.3d at 741 (internal quotation marks and citations omitted), the victims’

families’ central request for substantive changes to the DPA negotiated be-

tween the Government and Boeing—as distinct from the felony information

pending in district court—would require affirmative authority for judicial ac-

tion.

As the district court correctly concluded, however, the STA does not

convey that authority. The STA “assure[s] . . . speedy trial[s]” by establish-

ing time limits for a trial to commence once criminal charges have been filed.

See 18 U.S.C. § 3161. It is true that the STA provides a role for courts in ex-

clusions resulting from deferred prosecution. See 18 U.S.C. § 3161(h)(2)

(“Any period of delay during which prosecution is deferred by the attorney

for the Government pursuant to written agreement with the defendant, with

the approval of the court, for the purpose of allowing the defendant to demon-

strate his good conduct.” (emphasis added)). But as our sister circuits have

noted, this language appears “to have a particular focus” on rooting out re-

quests for exclusion that served as “a pretext intended merely to evade the

Speedy Trial Act’s time constraints,” rather than imbuing courts with the

power to “second-guess charging decisions.” Fokker, 818 F.3d at 744; see also

United States v. HSBC Bank USA, N.A., 863 F.3d 125, 138 (2d Cir. 2017).

This interpretation is supported by both the absence of clear congressional

direction to alter the “historical allocation of authority between the courts

and the Executive,” see HSBC, 863 F.3d at 138, as well legislative history de-

scribing the rationale of the “approval of the court” phrasing, see S. Rep.

No. 93-1021, at 37 (1974) (explaining that § 3161(h)(2) “now requires that

9

No. 23-10168

exclusion for diversion only be allowed where deferral of prosecution is con-

ducted ‘with approval of the court,’” which “assures that the court will be

involved in the decision to divert and that the procedure will not be used by

prosecutors and defense counsel to avoid the speedy trial time limits”).

Where, as here, victims’ families do not contend that the DPA between the

Government and Boeing was entered into for the purpose of circumventing

the speedy-trial time limits, 18 U.S.C. § 3161(h)(2) does not provide a basis

for the court to withhold its approval.7

Due respect for separation of powers likewise confirms that the dis-

trict court correctly concluded that the requested CVRA relief was not au-

thorized by the court’s authority “to supervise ‘the administration of crimi-

nal justice’ among the parties.” United States v. Payner, 447 U.S. 727, 735 n.7

(1980) (quoting McNabb v. United States, 318 U.S. 332, 340 (1943)). This in-

herent supervisory power, under which “federal courts may, within limits,

formulate procedural rules not specifically required by the Constitution or

the Congress,” has been understood to serve a “threefold” purpose: “to im-

plement a remedy for violation of recognized rights; to preserve judicial in-

tegrity by ensuring that a conviction rests on appropriate considerations val-

idly before the jury; and finally, as a remedy designed to deter illegal con-

duct.” United States v. Hasting, 461 U.S. 499, 505 (1983) (emphasis added)

(internal citations omitted). The victims’ families contend that the first of

the three—implementing a remedy for violation of recognized rights—is im-

plicated here. But the Supreme Court has instructed that “[t]he supervisory

power is applied with some caution,” Payner, 447 U.S. at 734, and should be

“exercised with restraint and discretion,” Chambers v. NASCO, Inc., 501

U.S. 32, 44 (1991); see also HSBC, 863 F.3d at 136 (“[T]he supervisory power

_____________________

7

But see Brandon L. Garrett, The Public Interest in Corporate Settlements, 58 B.C. L.

REV. 1483, 1500-1510 (2017).

10

No. 23-10168

doctrine is an extraordinary one which should be ‘sparingly exercised.’”

(quoting United States v. Jones, 433 F.2d 1176, 1181–82 (D.C. Cir. 1970)).

Intervention under the supervisory authority for the remedies that the

victims’ families seek, however, would be inappropriate. In their requests to

excise the conditional-release provision for Boeing, for example, the victims’

families ask the court to parse the DPA by preserving most of the agreement

negotiated between the parties, while simultaneously nullifying what likely

was the primary consideration Boeing received from the agreement. Signifi-

cantly, in the parallel guilty-plea context, this type of judicial line-item veto

is foreclosed by Federal Rule of Criminal Procedure 11, binding circuit

caselaw, and principles of fairness fundamental to the plea-agreement pro-

cess. See United States v. Brooks, 78 F.4th 138, 142–43 (5th Cir. 2023); see also

United States v. Serrano-Lara, 698 F.3d 841, 844–45 (5th Cir. 2012) (instruct-

ing that “a court choosing to accept a plea agreement does not then have the

option to perform a judicial line-item veto, striking a valid appeal waiver or

modifying any other terms”). We discern no meaningful difference when ju-

dicial intervention is sought to rewrite an agreement negotiated between the

government and a defendant outside the judicially enforceable regime of Rule

11.

B.

We must still address the district court’s additional conclusion that,

despite its “immense sympathy” for the crime victims here, it lacks legiti-

mate authority “to remedy the incalculable harm” those victims have suf-

fered. To the extent that this conclusion determinatively denies application

of the CVRA, that is inconsistent with the statute, the criminal rules, and

court authority to resolve criminal proceedings commenced in court.

Clarification of the courts’ ongoing CVRA responsibility is especially

significant in the context of DPAs, which have enjoyed surgent popularity in

11

No. 23-10168

the last two decades yet have been given scant attention in the caselaw. Alt-

hough originally conceived with the intent of “giv[ing] prosecutors the ability

to defer prosecution of individuals charged with certain non-violent criminal

offenses to encourage rehabilitation,” United States v. Saena Tech Corp., 140

F. Supp. 3d 11, 22–23 (D.D.C. 2015), and thereby “avoid draconian effects”

on first-time offenders, particularly for “relatively minor offenses,” David

M. Uhlmann, Deferred Prosecution and Non-Prosecution Agreements and the

Erosion of Corporate Criminal Liability, 72 Md. L. Rev. 1295, 1303, 1304

(2013), DPAs have now become “the predominant procedure for resolving

certain kinds of federal prosecutions of corporations,” Frederick T. Davis,

Judicial Review of Deferred Prosecution Agreements: A Comparative Study, 60

COLUM. J. TRANSNAT’L L. 751, 753 (2022). By one estimate, there have been

over 300 deferred corporate prosecutions since 1992. See Brandon L. Garrett

and Jon Ashley, Corporate Prosecution Registry, Duke Univ. Sch. Of L.

et Al., https://corporate-prosecution-registry.com/browse (last visited

Dec. 14, 2023).

Indeed, often imposing penalties of millions if not billions of dollars,

modern corporate DPAs are a recognized tool in corporate defense and often

evince a size and scale wholly unrecognizable from the DPA’s humble prov-

enance. And, increasingly, the complexities that DPAs present to courts are

evident even in the noncorporate context. See, e.g., In re Flynn, 961 F.3d 1215,

1228–29 (D.C. Cir. 2020) (“[T]he question at hand is not whether or under

what circumstances a district court may deny a Rule 48(a) motion, but

whether it may give consideration to such a motion before ruling on it. It

should come as no surprise that, before today, neither we nor any other Court

of Appeals has ever read Rule 48(a)’s ‘leave of court’ provision to mean that

a district court may not even consider such a motion before giving its

‘leave.’”) (Wilkins, J., dissenting in part), reh’g en banc granted, order vacated,

No. 20-5143, 2020 WL 4355389 (D.C. Cir. July 30, 2020), and on reh’g en

12

No. 23-10168

banc, 973 F.3d 74 (D.C. Cir. 2020); cf. Plea Hearing Transcript at 48:13–16,

United States v. Biden, No. 1:23-cr-61 (D. Del. Jul. 26, 2023), ECF No. 16

(“The Court: So I don’t mean to violate the separation of powers or do any-

thing unconstitutional. I’m trying to figure out what my role is and what the

appropriate rule is that applies to this.”); Glenn Thrust et al., Judge Puts

Hunter Biden’s Plea Deal on Hold, Questioning Its Details, N.Y. TIMES (July

26, 2023), https://www.nytimes.com/2023/07/26/us/politics/hunter-

biden-plea-deal-charges.html. 8

(1)

As set forth above, in any criminal prosecution commenced in court,

Congress commands that district courts use Article III authority to imple-

ment the CVRA, giving procedural guarantees to crime victims which the

Government failed to respect here. See 18 U.S.C. § 3771(b)(1) (“In any court

proceeding involving an offense against a crime victim, the court shall ensure

that the crime victim is afforded the rights described . . . .” (emphasis

added)). We have said so clearly when parties seek to resolve a criminal case

by plea agreement, In re Dean, 527 F.3d at 395, and the same obligation ex-

tends, explicitly, to DPAs. See 18 U.S.C. § 3771(a)(9).

(2)

Correspondingly, the district court exercised—and still retains—

authority over this criminal case according to the same criminal rules

_____________________

8

In light of the expansion in use of DPAs and the concomitant difficulties that may

arise (as this case demonstrates), we echo the call to Congress “to consider implementing

legislation” to provide for clear mechanisms and standards for judicial review of such

arrangements. HSBC, 863 F.3d at 143 (Pooler, J., concurring). That is particularly true

because Federal Rule of Criminal Procedure 60, pertaining to victims’ rights generally, has

limitations on relief pertaining to guilty pleas, sentencing and trials, but does not speak to

full criminal case dismissals, where victims’ concerns arguably are most acute. See Fed. R.

Crim. P. 60(b)(5), (6).

13

No. 23-10168

applicable to all other felony criminal prosecutions. Chronologically: the

Government commenced felony prosecution, thereby submitting itself to

court authority pursuant to Federal Rule of Criminal Procedure 7, just as

Boeing submitted itself to the same authority, as a charged defendant,

through its waiver of prosecution by indictment “in open court . . . after

being advised of the nature of the charge and of [its] rights.” Fed. R. Crim.

P. 7(b). The Government thus exercised its near plenary charging authority

when it brought a single charge by felony information, instead of by, for

example, contractual agreement declining prosecution altogether, so staying

outside the criminal justice system and courts entirely. See In re Wild, 994

F.3d at 1247 (“Because the government never filed charges against Epstein,

there was no preexisting proceeding in which Ms. Wild could have moved for

relief under the CVRA, and the Act does not sanction her stand-alone suit.”).

Having submitted a prosecution to the courts for resolution, no

separation-of-powers friction exists when a district court, in turn, first

publicly arraigned Boeing pursuant to Federal Rule of Criminal Procedure

10, assuring the crime victims’ families’ presence. And no friction existed

when the district court then proceeded to resolve preliminary motions,

notably here postponing trial and excluding time, both consistent with the

STA, while assessing, and ultimately denying, the crime victim families’

contention of Government bad faith. As in any criminal case after initial

appearance and arraignment, the parties to a criminal proceeding have

numerous corollary obligations, all subordinate to judicial authority, such as

the government’s ongoing duty to comply with Brady obligations, and a

defendant’s duty to adhere to pretrial conditions imposed by a court.

That the parties draw a court’s attention to, and indeed, file, their

DPA agreement anticipating a motion, in the future, to dismiss the criminal

case entirely, does not diminish a district court’s authority as to any of the

above. Instead, common to all criminal cases submitted for judicial

14

No. 23-10168

resolution, a district court generally next will determine whether and how the

parties intend to resolve the matter. Broadly speaking, this will be by guilty

plea and sentencing (pursuant to Federal Rules of Criminal Procedure 11 and

32); by trial and, upon a guilty verdict, entry of judgment (pursuant to Federal

Rules of Criminal Procedure 23 and 32); or by government motion to dismiss

the prosecution (pursuant to Federal Rule of Criminal Procedure 48(a)).

(3)

This settled sequence of federal courts’ authority to resolve criminal

prosecutions submitted to them aligns with, and is undiminished by,

contractual agreements between the government and defendants. This is

certainly true of party agreements filed with the court requesting that a court

accept or reject a guilty plea to resolve the prosecution, pursuant to Rule 11,

just as it is true of party agreements disclosed to the court that indicate an

intention to request dismissal of the prosecution pursuant to Rule 48(a). The

latter frequently are termed DPAs but, importantly, they derogate neither

court authority nor statutory rights, here rights conferred in the CVRA.

Stated differently, in terms of judicial responsibility, DPAs are as

dissimilar to non-prosecution agreements (NPAs) as they are similar to Rule

11 guilty plea agreements. An NPA is just that: no prosecution commences in

court. Courts are uninvolved, so accountability for the (declination) decision

not to prosecute lies squarely on the government. See U.S. Dep’t of Just.,

Just. Manual § 9-28.1100. Contrastingly, a criminal prosecution that is

submitted to courts to resolve, regardless of any party intention in the future

to move to dismiss, receives judicial imprimatur, 9 and hence is close kin to a

_____________________

9

If dismissal is granted, of course, a DPA and an NPA achieve, in eventuality, the

same outcome that no criminal record exists. Significantly, however, charges were

commenced in court, criminal conduct was admitted to, yet a court resolution confirms the

defendant actually will not receive the criminal conviction. The public and crime victims,

15

No. 23-10168

guilty-plea agreement submitted pursuant to Rule 11(c)(1)(A), where the

government commits to dismiss charges. When the government and a

defendant agree to resolve a case pursuant to Rule 11 involving dismissed

charges, no one disputes that that agreement will be reviewed and can be

rejected by a district court. Fed. R. Crim. P. 11(c)(5); see, e.g., United

States v. Foy, 28 F.3d 464, 472 (5th Cir. 1994) (“A court may properly reject

a plea agreement based on undue leniency.”); Santobello v. New York, 404

U.S. 257, 262 (1971) (“A court may reject a plea in exercise of sound judicial

discretion.”) (emphasis added); Missouri v Frye, 566 U.S. 134, 148–49 (2012);

United States v. Sandoval-Enrique, 870 F.3d 1207, 1213–20 (10th Cir. 2017);

United States v. Lewis, 633 F.3d 262, 270 (4th Cir. 2011); United States v.

Harris, 679 F.3d 1179, 1182 (9th Cir. 2012).

The emphasis we note, therefore, is that in both circumstances—full

dismissal of charges to resolve a criminal prosecution or partial dismissal of

charges to resolve a prosecution by guilty plea—courts retain adjudicatory

responsibility, including an obligation to apply the CVRA. Public perception

and confidence in the criminal justice system assume that when criminal

charges are submitted for judicial resolution, the courts vigilantly will enforce

the public interest, including Congress’ command that crime victims are

heard and protected.

The salient difference in criminal case resolution between a judicially

approved Rule 11(c)(1)(A) guilty plea agreement and a judicially approved

Rule 48(a) case dismissal is that the charged defendant who pleads guilty with

charges dismissed still is adjudicated by courts to be a convicted criminal.

The factual basis supporting that defendant’s conviction is entered as part of

_____________________

not to mention the government and defendants, necessarily and correctly see accountability

with Article III from start to finish.

16

No. 23-10168

the court’s judgment and that judgment, in turn, leads to Rule 32 sentencing

and, often, mandatory, court-ordered and supervised restitution for crime

victims. By contrast, when defendants, typically corporations, negotiate a

DPA, they bargain for a period of extended, unofficial probation, whereafter

the government agrees it will request full dismissal of the criminal case

pending in court. The DPA defendant then would not end up a convicted

criminal.

But in both cases—an accepted/rejected Rule 11 guilty plea or a

granted/denied Rule 48(a) dismissal—the public interest, especially that of

crime victims, rests crucially on court-approval. In short, the judicial role

stays present and constant throughout, and courts must validate the public

interest, above all, including rights that Congress has given to crime victims.

(4)

With the above in mind, the logic of our court’s decision in In re Dean,

is instructive and, in application here, determinative. 10 As in Dean, the

victims’ families “should have been notified of the ongoing [DPA]

_____________________

10

The Government devotes more attention to the D.C. Circuit’s decision in Fokker

than to our court’s decision in Dean, but Dean is binding on us and, regardless, we deem

Fokker to be inapt. Most importantly, Fokker did not concern the CVRA, much less

acknowledged violations of the CVRA. This distinction is crucial because, in the CVRA,

Congress explicitly directs that victims receive timely notification of “any . . . deferred

prosecution agreement.” 18 U.S.C. § 3771(a)(9). Second, the D.C. Circuit in Fokker

overturned a district court’s denial of a joint motion for exclusion of time under the STA,

which is analysis that we apply ourselves. Third, even in the context of the STA, the D.C.

Circuit rested its decision on the impropriety of a district court critically assessing the terms

of the DPA, calling it “grossly disproportionate to the gravity of [the defendant’s]

conduct.” United States v. Fokker Servs., B.V., 79 F. Supp. 3d 160, 167 (D.D.C. 2015),

vacated and remanded, 818 F.3d 733 (D.C. Cir. 2016). Explicitly, therefore, the Fokker

district court judge not only reached out to reject the terms of the DPA, but also, in doing

so, engaged in prohibited “second-guess[ing]” of “[e]xecutive determinations” and

“impose[d] its own charging preferences.” Fokker, 818 F.3d at 737.

17

No. 23-10168

discussions and should have been allowed to communicate meaningfully with

the government . . . before a deal was struck.” 527 F.3d at 395. That is

particularly true if the deal, in ultimate outcome as approved by federal court,

means no company, and no executive and no employee, ends up convicted of

any crime, despite the Government and Boeing’s DPA agreement about

criminal wrongdoing leading, the district court has found, to the deaths of

346 crash victims.

As in Dean, “[t]he unfortunate fact is that the . . . agreement was

reached without the victims’ being able to participate by conferring in

advance.” Id. For that reason, we made clear that when the Government and

the defendant in that criminal proceeding submitted their Rule 11 guilty plea

(resulting in a criminal judgment), judicial approval would require that

victims were heard. Id. at 396. Similarly here, the district court has yet to

resolve the criminal prosecution still pending before it and, applying the logic

of Dean, we clarify that if judicial approval is sought to resolve the instant

case, the district court has an ongoing obligation to uphold the public interest

and apply the CVRA. That authority continues, therefore, regardless of the

resolution method ultimately pursued to resolve the criminal proceedings,

whether Rule 23 trial, Rule 11 guilty plea, or Rule 48 dismissal order. 11

More specifically, if the Government concludes, independent of court

supervision, that Boeing has not complied with the DPA, the case will instead

proceed to trial or to Rule 11 guilty plea resolution, both assuring CVRA

victim protection. On the other hand, if the Government assesses that Boeing

has complied sufficiently with the DPA’s terms and asks the district court to

dismiss criminal proceedings, then, “in passing on any government motion

_____________________

11

The Government and Boeing in their negotiated DPA necessarily acknowledge

that court resolution may result other than through a Rule 48(a) requested case dismissal.

18

No. 23-10168

under Rule 48(a) . . . the court will expect to see the prosecutor recount that

the victim has been consulted on the dismissal and what the victim’s views

were on the matter.” United States v. Heaton, 458 F. Supp. 2d 1271, 1273 (D.

Utah 2006).

For this reason, as it was in Dean, we decide that mandamus interces-

sion is premature. Thus far, the district court has demonstrated careful com-

petence that, whereas it cannot substantively revise the DPA between the

Government and Boeing, it nonetheless must uphold crime victims’ statu-

tory rights at every stage of the court’s criminal proceedings. If a sought-for

final stage is a Government motion to dismiss, we are confident, as in Dean,

that the district court will assess the public interest according to caselaw as

well as the CVRA, including violations already admitted to, as well as any

other circumstances brought to its attention by the victims’ families. See

United States v. Hamm, 659 F.2d 624, 629 (5th Cir. Unit A Oct. 1981) (en

banc) (reiterating Supreme Court and prior Fifth Circuit precedent that dis-

trict judges are empowered to deny dismissal when “clearly contrary to man-

ifest public interest” as assessed “at the time of the decision to dismiss”);

see also United States v. Romero, 360 F.3d 1248, 1251–52 (10th Cir. 2004) (not-

ing courts may refuse to dismiss charges if dismissal is “clearly contrary to

manifest public interest” and discussing Fifth Circuit cases); United States v.

Garcia-Valenzuela, 232 F.3d 1003, 1007–08 (9th Cir. 2000) (same); cf. United

States v. Carrigan, 778 F.2d 1454, 1463 (10th Cir. 1985) (observing that alt-

hough “a court’s discretion is more limited under Rule48(a) than . . . under

Rule 11(e),” courts are not required to grant Rule 48(a) motions to dismiss if

“clearly contrary to manifest public interest,” and citing Fifth Circuit

cases). 12

_____________________

12

While the Supreme Court indicated that “[t]he principal object” of the “leave

of court” required for dismissals pursuant to Rule 48(a) was “to protect a defendant against

19

No. 23-10168

IV.

As to the Subsequent Movants, the district court dismissed their

claims due to laches, finding that they “did not pursue their requested relief

until nearly two years after the Government filed the DPA in this case,” and

“ten months after the original movants sought recognition of rights.”

Though both LOT and Smartwings filed mandamus petitions, Smartwings

was dismissed following an unopposed motion to withdraw its petition.

Therefore, only LOT’s petition remains.

We review the district court’s decision concerning the availability of

laches de novo, any relevant factual findings for clear error, and its fact-spe-

cific application of laches for an abuse of discretion. See SCA Hygiene Products

Aktiebolag v. First Quality Baby Products, LLC, 580 U.S. 328, 334-36 (2017);

Retractable Techs., Inc. v. Becton Dickinson & Co., 842 F.3d 883, 900 (5th Cir.

2016).

Laches, an affirmative “defense developed by courts of equity” po-

tentially applicable to statutes in “which the Legislature has provided no

fixed time limitation,” Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663,

678 (2014), is intended to “protect defendants against unreasonable,

_____________________

prosecutorial harassment,” Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977), the Court

also acknowledged—and expressly left open—courts’ use of Rule 48(a) to deny dismissals

when “prompted by considerations clearly contrary to the public interest.” Id. (citing, inter

alia, United States v. Cowan, 524 F.2d 504 (5th Cir. 1975)). Indeed, with the history of Rule

48 in mind, we have observed that “[i]t seems manifest that the Supreme Court intended

to . . . vest[] in the courts the power and the duty to exercise a discretion for the protection

of the public interest,” and have noted that early case law interpreting Rule 48(a)

“supports this theory.” Cowan, 524 F.2d at 511; see also Thomas Ward Frampton, Why Do

Rule 48(a) Dismissals Require “Leave of Court”?, 73 Stan. L. Rev. Online 28, 32–37

(2020) (analyzing debates and votes of the Rule’s drafting Advisory Committee to show

that its “text was understood as vesting district judges with the power to limit unwarranted

dismissals by corruptly motivated prosecutors”); see generally Garrett, supra note 8.

20

No. 23-10168

prejudicial delay in commencing suit.” Aktiebolag, 580 U.S. at 333 (quotation

marks and citation omitted). To establish laches, a defendant must show in-

excusable delay that causes undue prejudice. Env’t Def. Fund, Inc. v. Alexan-

der, 614 F.2d 474, 478 (5th Cir. 1980). “Whether laches bars an action in a

given case depends upon the circumstances of that case and is a question pri-

marily addressed to the discretion of the trial court.” Id. (quotation marks

and citation omitted).

LOT argues that laches cannot be applied in a criminal context, and

points to the dearth of cases demonstrating otherwise. Yet the general ab-

sence of the application of laches in criminal cases is understandable, given

that “laches may not be asserted as a defense against the United States when

it is acting in its sovereign capacity to enforce a public right or protect the

public interest.” United States v. Popovich, 820 F.2d 134, 136 (5th Cir. 1987);

see also United States v. Milstein, 401 F.3d 53, 63 (2d Cir. 2005). Here, by con-

trast, laches is invoked not to avoid prosecution, but to bar CVRA claims—

and so the general rule against laches in criminal contexts is not determina-

tive.

LOT next argues that laches should have been unavailable due to un-

clean hands. Yet we find no abuse of discretion in the district court’s decision

to the contrary, in light of both the implications of the argument in the con-

text of DPAs and the district court’s finding of no Government bad faith. The

former, in particular, is instructive. DPAs, by definition, involve the admis-

sion of and acceptance of responsibility for misconduct. Finding that admit-

ted misconduct to constitute unclean hands, as LOT urges, would mean that

laches could never be invoked, an outcome that we do not accept.

Finally, LOT argues that the text and purpose of the CVRA foreclose

laches, noting that the statute itself does not set any time limitations, and em-

phasizing that the CVRA was intended to afford victims rights, not restrict or

21

No. 23-10168

narrow them. However, the CVRA does contain several, specific time limi-

tations—such as those that govern when a victim can seek to reopen a plea

or sentence, 18 U.S.C. § 3771(d)(3)—even if none explicitly relates to a

“time limit within which putative crime victims must seek relief in the dis-

trict court,” In re Allen, 701 F.3d 734, 735 (5th Cir. 2012) (per curiam). In-

deed, we expressly left the door open to the possibility that a particularly “in-

convenient delay . . . could trigger the doctrine of laches or some other legal

principle that might bar a request for crime victim status” under the CVRA.

Id. And the Second Circuit has determined that laches can apply under the

CVRA, although declined to apply it under the facts of the particular case.

Fed. Ins. Co. v. United States, 882 F.3d 348, 365–66 (2d Cir. 2018).

For these reasons, we do not perceive an abuse of discretion in the

district court’s application of laches to LOT’s petition inasmuch as it per-

tains to the Government’s failure to confer, almost two years earlier, before

the criminal complaint against Boeing was filed. We therefore deny the man-

damus petition as to LOT. This is without prejudice, however, to any effort

LOT may urge to be heard as a CVRA victim when this criminal case comes

to resolution. See In re Allen, 701 F.3d at 735 (granting mandamus to preserve

opportunity to assert CVRA claims pre-sentencing rather than to reopen de-

terminations already made).

V.

For the reasons discussed above, we DENY mandamus relief without

prejudice, confident that the district court will uphold victims’ CVRA rights

throughout the instant criminal proceedings, above all when, how, and if ju-

dicial approval is sought to resolve this case.

22

No. 23-10168

Edith Brown Clement, Circuit Judge, concurring:

I concur in the majority opinion in full. I write separately to note that

our decision should not be read as holding that the district court was

prohibited from setting aside the DPA at an earlier stage of these

proceedings—including upon motion from the victims’ families—after

finding that the victims’ CVRA rights had been violated. Cf.

Restatement (Second) of Contracts § 178 (providing that

contracts entered in violation of public policy are void and unenforceable).

Otherwise, we would be inviting criminal defendants and the government to

violate victims’ CVRA rights by negotiating DPAs in secret and taking their

chances that the district court will accept Rule 48(a) dismissal years down

the line.

Our holding is only that the district court was not required to do so.

After all, the CVRA’s “shall ensure” provision grants the district court

discretion as to how it ensures that crime victims are afforded their statutory

rights. See, e.g., 150 Cong. Rec. S4269 (Apr. 22, 2004) (statement of Sen.

Feinstein) (stating that the “shall ensure” provision “is critical because . . .

it is the courts that will be responsible for enforcing” victims’ CVRA rights);

150 Cong. Rec. 22953 (Oct. 9, 2004) (statement of Sen. Kyl) (explaining

that the “clear intent and expectation of Congress” was for district courts to

“giv[e] meaning to the [CVRA] rights we establish”). And here, we are

confident that the district court will ensure that the victims’ families are

afforded such rights prior to passing on any Rule 48(a) motion. Ante at 18–

19.

23