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

Jack Ng, owner of China City, at his restaurant in Mill Creek on Tuesday, Jan. 4, 2022. (Olivia Vanni / The Herald)
Businesses and nonprofits plan to push through COVID in 2022

“You can’t just wait until the fog clears,” says one business owner. Here’s what he and others are planning.

Garry Clark, CEO of Economic Alliance Snohomish County. (Kevin Clark / Herald file)
Economic Alliance launches new diversity and equity program

The economic development group hopes for widespread participation among the region’s employers.

Christian Sayre
Everett bar owner arrested again on new sexual assault charges

Christian Sayre, longtime owner of The Anchor Pub, was charged Friday with 10 counts of felony sex offenses.

FILE - Bill Gates speaks during the Global Investment Summit at the Science Museum, London, Tuesday, Oct, 19, 2021. A small city in the top U.S. coal-mining state of Wyoming will be home to a Bill Gates-backed experimental nuclear power project near a coal-fired power plant that will soon close, officials announced Tuesday, Nov. 16, 2021. (Leon Neal/Pool Photo via AP, File)
Microsoft to review workplace harassment, including Bill Gates allegations

One engineer wrote in a letter that she had a sexual relationship with Gates over several years.

Snohomish roofing company fined another $425K for safety violations

Allways Roofing has had at least seven serious injuries on its job sites, according to the state.

ZeroAvia will collaborate with Alaska Air Group, the parent company of Alaska Airlines, to produce a hydrogen-electric powertrain capable of flying 76-seat regional De Havilland Q400 aircraft in excess of 500 nautical miles. (Alaska Airlines)
Hydrogen-powered aircraft company ZeroAvia coming to Everett

It adds to Snohomish County’s growing repertoire of firms focused on flight without petroleum.

Federal lawsuit challenges ‘tribal monopoly’ on sports betting

Maverick Gaming wants to invalidate compacts allowing tribes, including the Tulalip and Stillaguamish, to offer sports wagering.

FILE - In this Monday, March 23, 2020, file photo, a worker walks near a mural of a Boeing 777 airplane at the company's manufacturing facility in Everett, Wash., north of Seattle. Federal regulators have indicated they likely won't certify Boeing's next airliner until 2023 because of questions about changes the aircraft manufacturer is making in software and hardware on a new version of the two-aisle 777 jet. (AP Photo/Ted S. Warren, File)
Boeing keeps giving big money to lawmakers who voted to overturn the election

Amazon and Microsoft stopped donating to members of Congress who voted against certifying the election.

Roei Ganzarski, CEO of magniX, poses with a production electric engine, the magni500, at the  company's new office on Seaway Boulevard on Monday, Jan. 18, 2020 in Everett, Washington.  (Andy Bronson / The Herald)
CEO of electric aircraft-engine company is stepping down

Roei Ganzarski, CEO of magniX and chairman of Eviation Aircraft, plans to leave both Snohomish County firms.

Streateries dot the streets of downtown Edmonds Wednesday afternoon on December 8, 2021. (Kevin Clark / The Herald)
Edmonds council cuts ‘streateries’ permit fee in half

After weeks of deliberation, council members compromised on the cost of restaurants’ outdoor dining spaces.

Marilyn Rosenberg, owner of Cafe Zippy, on the last day of business in Everett Friday afternoon on December 31, 2021.  (Kevin Clark / The Herald)
Cafe Zippy, an offbeat Everett community hub, closes

With a $700 rent hike looming, owner Marilyn Rosenberg opted to close the restaurant after a 17-year run.

FILE - A U.S. Air Force KC-46A Pegasus jet takes off on April 23, 2021, near a line of Boeing 777X airplanes parked nose to tail on an unused runway at Paine Field, near Boeing's production facility in Everett, Wash. Boeing said Friday, Dec. 17, 2021 that it's suspending a company COVID-19 vaccination mandate for all U.S.-based employees. (AP Photo/Elaine Thompson, File)
Hoping for recovery, Boeing bosses look to the future

Top Boeing leaders said the company will launch a freighter version of the giant 777X, built in Everett.