By Alan Levin / Bloomberg News
Federal Aviation Administration officials have approached U.S. prosecutors to warn them that the lone person charged with a crime after the two fatal crashes of Boeing Co.’s 737 Max is being made a “scapegoat,” according to a court filing in the case.
Statements by the Department of Justice after it indicted Mark Forkner, Boeing’s former chief technical pilot, last October contained “many errors in fact,” according to an email and a presentation given to prosecutors by the FAA employees. The case’s focus on Forkner’s actions in the wake of the crashes is “incorrect and misguided,” the FAA officials said.
The unusual assertions by FAA officials, which could substantially undercut the prosecution’s case, were detailed in a motion by Forkner’s lawyers filed Monday in a Texas court asking a judge to order access to the officials as potential witnesses in the case.
One unnamed FAA official approached prosecutors on Oct. 26, 12 days after Forkner was indicted, to request a meeting, said the motion by Forkner lawyers Jeff Kearney, Catherine Stanley and David Gerger.
“Forkner, he said, is a ‘scapegoat’ and should ‘not be charged,’” the lawyers said in the motion.
In a PowerPoint presentation by FAA officials, with the agency’s logo prominently attached to each page, they say alleged “smoking gun” evidence wasn’t relevant to the case, and Forkner’s role in developing pilot-training for the Max played no role in the FAA’s decision to certify the plane or the design errors that led to the crashes.
The information throws new uncertainty into the Forkner case and the narrative of the 737 Max saga, which prompted a 20-month grounding of Boeing’s best-selling aircraft and led to billions in losses for the planemaker. It also comprises some of the most detailed explanations about what U.S. regulators believe went wrong in the 737 Max’s approval.
Erin Dooley, a spokeswoman for the U.S. Attorney’s Office in the Northern District of Texas, where the charges against Forkner were filed, declined to comment on the motion.
The FAA didn’t immediately respond to a request to discuss the case. Boeing couldn’t immediately be reached for comment.
Crashes off the coast of Indonesia and in Ethiopia within about four months in 2018 and 2019, which killed 346 people, were triggered in part by failures that caused the jets to automatically nosedive repeatedly. In both cases, pilots didn’t perform a procedure that would have disabled the errant system and they eventually lost control of the planes.
Late in the design of the plane, Boeing engineers altered the system to make it push the plane’s nose down more aggressively, but didn’t fully explain the changes to the FAA, according to several investigations.
Boeing struck a $2.5 billion deal in the waning days of the Trump administration that resolved a two-year criminal probe without blaming executives or throttling company finances. The settlement focused narrowly on the actions of Forkner and another former Boeing employee involved in drafting pilot manuals, and the Justice Department found that “the misconduct was neither pervasive across the organization, nor undertaken by a large number of employees, nor facilitated by senior management.”
The aerospace titan agreed to a single criminal count for misleading U.S. regulators who certified the Max’s design, and paid a $243.3 million fine. The charge will be dropped after three years if Boeing complies with the terms of the deferred prosecution agreement.
‘Jedi Mind Tricks’
Forkner became a poster boy for Boeing’s failures when a trove of his caustic and sarcastic text messages was released. He bragged about using “Jedi mind tricks” to persuade regulators and told a colleague he had unknowingly misled the FAA.
However, the FAA officials who approached prosecutors said his role to develop pilot-training materials and persuade the FAA and other regulators around the world to approve them weren’t relevant to the plane’s design faults and the accidents.
Then, on about Nov. 16, the official, who apparently was helped by others at FAA, sent the PowerPoint presentation to prosecutors, the lawyers wrote. None of the officials were identified in the motion.
It said that there was a “false narrative” in the wake of the accidents that focused on whether pilots had been properly trained on the system linked to the crashes. It had been Forkner’s responsibility to gain approval for the training.
The real issues leading to the crashes were Boeing engineers’ failure to recognize that a single malfunctioning sensor on the plane could prompt such severe consequences, the officials said. “All the training in the world can’t solve this non-compliance,” they said in the presentation.
The problem “concerned an engineering issue that Mr. Forkner was neither qualified, expected, nor responsible for,” the PowerPoint said. “Any fault lies with personnel involved in the engineering certification.”
The motion doesn’t make clear whether the officials believe other Boeing employees committed crimes.
The FAA has so far refused to allow any current or former employees to become involved in the case. Forkner’s legal team filed the motion in an attempt to gain access to them.
The Justice Department turned over information about the officials’ claims, including the PowerPoint, according to the motion. Forkner’s lawyers included some pages of the presentation, but not the full document.
The case is U.S. v. Forkner, 21cr268, U.S. District Court for the Northern District of Texas (Fort Worth).
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