A federal grand jury in Texas on Thursday indicted Mark Forkner, 49, Boeing’s former chief technical pilot on the 737 MAX program, charging him with fraud.
This is the only criminal charge so far resulting from a Department of Justice investigation into two deadly MAX crashes that killed 346 people in Indonesia and Ethiopia.
The government reached a Deferred Prosecution Agreement with Boeing in January, in which the company acknowledged fraud and criminal misconduct during certification of the MAX.
The DPA slapped Boeing with a relatively small fine of $244 million and specifically exonerated Boeing’s senior management by stating that they had not facilitated the misconduct. However, the agreement cited Forkner and his deputy as being involved.
Thursday’s indictment alleges Forkner deceived both the Federal Aviation Administration and Boeing’s airline customers by withholding information about the MAX’s new flight-control system — called the Maneuvering Characteristics Augmentation System, or MCAS.
“In an attempt to save Boeing money, Forkner allegedly withheld critical information from regulators,” said Chad Meacham, acting U.S. attorney for the Northern District of Texas. “His callous choice to mislead the FAA hampered the agency’s ability to protect the flying public and left pilots in the lurch, lacking information about certain 737 MAX flight controls.”
A trial could shed more light on why flaws in the MCAS were overlooked during certification.
Forkner is charged with two counts of fraud involving aircraft parts in interstate commerce and four counts of wire fraud.
If convicted, he faces a maximum penalty of 20 years in prison on each count of wire fraud and 10 years in prison on each count of fraud involving aircraft parts in interstate commerce.
He is expected to make his initial court appearance Friday in Fort Worth, Texas. Forkner’s attorney David Gerger said Thursday he will have no comment before then.
Forkner’s role with the MAX from the jet’s launch in 2011 through its certification in 2017 was to win approval from the FAA and regulators around the world for the MAX’s technical manuals and pilot training on the new airplane.
He was required to identify for regulators all important differences between the controls on the MAX versus the previous 737 model.
Forkner told the FAA that pilots would never have to deal with MCAS and didn’t need to know about it. He persuaded them to remove all mention of it from the pilot handbook.
The Department of Justice said that around November 2016, while Boeing was flight-testing the MAX ahead of certification, Forkner discovered Boeing engineers had made an important change to the MCAS software, so that it operated at certain lower-speed flight conditions instead of only in a high-speed turn as originally intended.
On discovering the change, Forkner in an instant message to his deputy made clear he realized that information he had previously given the FAA was no longer accurate. “So I basically lied to the regulators (unknowingly),” Forkner wrote.
However, Forkner never went back to the FAA to correct the misinformation.
This showed a “blatant disregard for his responsibilities and the safety of airline customers and crews,” FBI Assistant Director Calvin Shivers said in a statement.
Forkner became notorious in 2019 after Boeing turned over to the FAA a series of emails and instant message exchanges between Forkner and his deputy, Patrik Gustavsson.
In these exchanges, Forkner bragged about how he had “jedi mind tricked” airlines into choosing the minimum pilot training option.
Forkner described how he persuaded Lion Air officials who wanted to train their pilots on MAX simulators to drop the idea, telling them this was “a difficult and unnecessary training burden for your airline.”
Forkner in private messages then mocked the Lion Air representatives for their “stupidity” in asking for such training, and boasted that his efforts to dissuade them had saved Boeing “a sick amount of $$$$.”
Lion Air Flight JT610 was the first MAX to crash in October 2018, killing 189 people.
In a 2014 email, Forkner wrote that avoiding the need for full flight simulator pilot training, which would cost the airlines a lot of money, was a key imperative from the leadership of the MAX program.
Forkner joked that if he failed to prevent regulators from requiring full simulator training, he would be burned at the stake.
Boeing’s leadership had guaranteed Southwest Airlines a $1 million refund per airplane if the plane’s certification required the carrier to train its pilots on simulators.
In the end, the MAX’s certification required pilots familiar with the previous 737 model to take only a couple of hours training on a computer.
Forkner did not cooperate with the Department of Justice investigation into the jet’s certification and invoked the Fifth Amendment to avoid turning over documents when subpoenaed by federal prosecutors.
He left Boeing to fly for Southwest Airlines in 2018, three months before that fatal crash. He left Southwest a year ago. Forkner currently lives in Keller, Texas, according to the indictment.
The prosecution agreement, criticized for the way it let Boeing executives off the hook, was filed by the then-U.S. Attorney in the northern district of Texas, Erin Nealy Cox.
Cox left the Department of Justice after the agreement and in June joined Kirkland & Ellis, Boeing’s lead corporate criminal defense law firm. On Kirkland’s website, she was welcomed to the firm as a partner by Mark Filip, who had signed the DPA on behalf of Boeing.
Forkner’s indictment was filed by her replacement, acting U.S. Attorney Meacham.
Editor’s note: Because Seattle Times policy is to not host comments on stories involving criminal charges, the comment thread has been removed.