The Department of Transportation Federal Aviation Administration building is seen in Washington. (AP Photo/Andrew Harnik, File)

The Department of Transportation Federal Aviation Administration building is seen in Washington. (AP Photo/Andrew Harnik, File)

FAA: Boeing pilot charged in 737 Max crash is a ‘scapegoat’

Mark Forkner became a poster boy for the planemaker’s failures after his texts and emails were released.

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).

Talk to us

More in Herald Business Journal

Think Tank Cowork in Everett, Washington on July 19, 2022. (Kevin Clark / The Herald)
The first co-working space opens in downtown Everett

Think Tank Cowork’s owner hopes the facility will inspire other business owners to call Everett home.

New LGI Homes on Thursday, May 12, 2022 in Sultan, Washington. (Olivia Vanni / The Herald)
The real estate market took an abrupt turn this spring

Mortgage rates are up, but home inspections, seller concessions are back on the table for buyers.

The Lab@Arlington is a new one-stop shop for entrepreneurs and inventors located at 404 N. Olympic Ave. (Photo credit: TheLab@Arlington)
New Arlington business incubator opens

TheLab@Arlington is a new one-stop shop for entrepreneurs, inventors and business owners.

Patrons view the 787 exhibition Thursday morning at the Boeing Future of Flight Musuem at Paine Field on October 8, 2020. (Kevin Clark / The Herald)
Paine Field was county’s No. 1 tourist attraction. Not now

Snohomish County officials hope festivals and outdoor activities will fill Paine Field tourist gap.

Logo for news use featuring the municipality of Stanwood in Snohomish County, Washington. 220118
Stanwood Chamber of Commerce ‘can’t keep the doors open’

The chamber is set to shut down at the end of the month due to financial challenges.

Maria Rios, a ferry worker of 13 years, helps Frank and Fran Butler, both of Washington, D.C., check out as the couple purchases food on Thursday, July 21, 2022, aboard the MV Suquamish ferry between Mukilteo and Clinton, Washington. Rios said food service returned to the Suquamish about three weeks prior. (Ryan Berry / The Herald)
Drink up! Happy hour on the Mukilteo-Clinton ferry is back

More galleys are reopening as pandemic restrictions scale back. Get out of your car for concessions just like at the ballpark.

OnTrac Logistics has leased a building now under construction at Bay Wood Business Park on Everett's waterfront. The shipping company will open a facility there later this year that will employ 400 people. (Artist Rendering/Broderick Group.)
New Everett shipping facility to generate 400 jobs

OnTrac Logistics has leased a new building on the 12½-acre Baywood Business Park on Everett’s waterfront.

The Flying Heritage & Combat Armor Museum at Paine Field in Everett. (Janice Podsada / The Herald) 20220419
Flying Heritage Museum to reopen with new owner at Paine Field

Walmart heir Steuart Walton bought the historic aircraft and artifacts. The museum is set to reopen within the year.

Renee's Contemporary Clothing store at 2820 Colby Ave. on July 11, 2022. The iconic downtown Everett store is closing in August after 29 years in business. (Janice Podsada/The Herald)
Renee’s, another iconic downtown Everett store, is closing

After 29 years in business, the longstanding clothing shop will shutter. In-person sales slowed when stores reopened.

FILE - The logo for Boeing appears on a screen above a trading post on the floor of the New York Stock Exchange, Tuesday, July 13, 2021. Boeing is reporting a money-losing quarter as both its civilian-airplane division and the defense business are struggling. Boeing said Wednesday, April 27, 2022,  that it lost $1.24 billion in the first quarter and took large write-downs for several programs.  (AP Photo/Richard Drew, file)
Boeing sees best month for aircraft deliveries since 2019

The company delivered 51 passenger and cargo planes in June, its best month for deliveries in recent years.

The Alderwood Towne Center, a 105,000 square-foot strip mall, is located at 3105-3225 Alderwood Mall Blvd. The mall, which has been sold, is home to 20 businesses, including anchor tenants Marshalls and Michaels. Photo Credit: CBRE Group.
Lynnwood strip mall near Link Light Rail Station sold

Alderwood Towne Center, home to 20 businesses, could eventually be redeveloped to take advantage of light rail.

James Berntson shows how his farm uses a trellis system to control tomato plants on Tuesday, June 21, 2022, at Radicle Roots Farm in Snohomish, Washington. (Ryan Berry / The Herald)
Backyard business: Snohomish farm thrives on less than one acre.

James Berntson grew Radicle Roots Farm using smart crop planning and organic practices.