Analysis

Ex-Boeing Pilot's Acquittal In 737 Max Trial A DOJ Flop

Law360 (March 24, 2022, 8:58 PM EDT) -- Boeing's former chief technical pilot's acquittal on charges he deceived safety regulators and airlines about the 737 Max was a high-profile flop for U.S. Department of Justice prosecutors who sought to pin liability on a lone individual for corporate missteps at Boeing that contributed to two deadly crashes, experts say.

Legal experts told Law360 that the government's wire fraud case against Mark A. Forkner was thin — with hardly enough evidence to overcome the "beyond a reasonable doubt" standard that's needed to convict in criminal cases — and didn't really provide a fuller picture of what caused two disasters involving brand new, fuel-efficient jets: the 737 Max 8.

While crash victims' families and other litigants continue to forge ahead with civil cases against Boeing in pursuit of damages, experts say the Forkner verdict suggests it's unlikely that anyone else at The Boeing Co. will face criminal charges over design, engineering or managerial decisions that ultimately contributed to the two 737 Max crashes in 2018 and 2019.

That's partly because Boeing reached a deal with the Justice Department last year that shielded the company from criminal prosecution in exchange for Boeing paying a $243.6 million criminal penalty, $1.77 billion in compensation to its airline customers and $500 million to establish a crash victims' beneficiary fund to compensate families of the 346 people killed.

"I don't think you're going to see any more individuals being prosecuted [because] they've got this deferred prosecution agreement," said Bradley D. Simon, a white collar defense attorney with Schlam Stone & Dolan LLP. "That's the end of the story, unfortunately ... The whole point of the DOJ was to bring individual wrongdoers to justice and it seemed like their effort [here] was half-hearted."

A Verdict After 90 Minutes

Forkner's criminal fraud trial in a Fort Worth, Texas, federal courtroom was, by many accounts, swift: It took place just five months after the initial indictment, lasted less than four days, and resulted in a jury finding Forkner not guilty on all four counts of wire fraud after just 90 minutes of deliberation on Wednesday.

Forkner is the only individual who's been criminally charged — and now tried — over the 737 Max scandal stemming from the October 2018 crash of Lion Air Flight 610 in the Java Sea that killed 189 people and the March 2019 crash of Ethiopian Airlines Flight 302 that killed 157 people. What followed was an unprecedented 20-month global grounding of the aircraft and multiple investigations targeting Boeing's miscalculations throughout the 737 Max's development and the Federal Aviation Administration's oversight lapses during the jet's certification process.

The Justice Department insisted that its case was not about blaming Forkner — or Boeing — for the two crashes. The trial was narrowly focused on a purported scheme to defraud in order to save Boeing millions of dollars. But it failed to offer insight into what extent Boeing employees allegedly downplayed the novelty of the plane's features to manipulate the level of FAA-mandated training that would be needed — all to get the aircraft to market faster.

"It was focused on the issue of disclosure to the FAA and who said what, who knew what. The defense that Forkner and his team put up, by way of 'scapegoat,' I would suggest that it struck a chord with the jury," said Fox Rothschild LLP aviation partner Mark Dombroff, a former DOJ and FAA attorney.

"To zero in on one pilot in the criminal context — particularly, given the fact that there never was a criminal trial involving Boeing — that's a really big hurdle to pin everything that occurred [on Forkner] and that this guy was motivated to lie to the FAA in order to allow Boeing to make money. That's a pretty high bar," Dombroff said.

Dombroff, who spent years defending the FAA earlier in his career, explained that "the number of contacts in terms of the volume of information and the relationships that exist between the FAA and any manufacturer seeking certification, is enormous."

"To say that the only line of communication or source of knowledge is the chief technical pilot — the system doesn't work that way," he said.

Ultimately, "there were no silver bullets presented, there was no real new evidence presented," Dombroff added. "If anything, I suspect there's a level of concern because a jury took 90 minutes to decide not guilty."

A Disappointing Showing for the DOJ

The DOJ launched its criminal conspiracy investigation into Boeing's development of the 737 Max days after the Ethiopian Airlines crash in March 2019. Legal observers speculated at the time that the DOJ would likely dig into whether there was knowledge of a faulty product being put out into the market and whether there were any misrepresentations or fraud with submissions made to the FAA in order to get the aircraft approved.

Then the DOJ announced in January 2021 that it reached a deferred prosecution agreement under which Boeing accepted responsibility for misleading statements that two former Boeing employees — one of them, Forkner — made to the FAA Aircraft Evaluation Group, which sets the training standards for new jet models.

Per the agreement, the deal "does not provide any protection against prosecution for any future conduct by the company" and "does not provide any protection against prosecution of any individuals, regardless of their affiliation with the company."

The Justice Department declined to comment on the status of its 737 Max-related investigation on Thursday, but firmly stood by its handling of the Forkner case.

"While we are disappointed in the outcome, we respect the jury's verdict," a DOJ spokesperson said in a statement. "The Justice Department stands by the hard work of the prosecutors and our law enforcement partners in investigating and trying this case."

Forkner's attorneys maintained that he never lied to regulators or the airlines about an automated feature unique to the 737 Max, the Maneuvering Characteristics Augmentation System, which affected the jets' flight control system. They insisted that Forkner was being singled out as a scapegoat for the myriad failings at Boeing and at the FAA.

The government sought to portray Forkner as a master manipulator who willingly lied to the FAA — based on flippant and mocking emails and text messages he sent to colleagues — but experts say the jurors likely viewed that as internal banter that didn't rise to the level of fraud.

Overall, the government had a "skimpy case" against Forkner, according to Simon of Schlam Stone, who also is a former assistant U.S. attorney for the Eastern District of New York and trial attorney with the DOJ's Criminal Division. He said it would've been a stretch to get a jury to convict one individual "for all the wrongs of Boeing."

"For years, the DOJ has been subject to criticism that all they want to do is get these big settlements, and they never go after individuals. So they pick this guy," Simon said. "They should be going after the higher-ups in the company who made a lot of these decisions. That's where they should've been focusing their firepower, and not on some test pilot."

Meanwhile, attorneys for the crash victims' families told Law360 on Thursday that they weren't surprised by the Forkner verdict, noting that it doesn't impact their civil cases.

"It doesn't affect the civil cases one bit," said Kevin Durkin of Clifford Law Offices, which is representing families of the Ethiopian Airlines crash in consolidated litigation against Boeing in Illinois.

"There's no doubt he was teed up by Boeing as a scapegoat — it was part of their deferred prosecution agreement. It just seems to me that the whole scheme of saving money and hiding information from the FAA is a large corporate scheme and this guy is down at the bottom of the totem pole," Durkin explained. "And jurors don't like that. They want accountability from the ones who are really behind things, not scapegoats."

Several crash victims' families are fighting to get Boeing's deferred prosecution agreement with the DOJ rescinded, saying federal prosecutors acted "in secrecy and with deceit" when they negotiated the deal with Boeing without even consulting the families. That violates the Crime Victims' Rights Act, the families have said.

It remains to be seen whether getting the DPA rescinded would open the door to further individual prosecutions. But attorneys for the families say they're looking forward to having their day in court and getting to the bottom of all the facts. 

"We're disappointed that Forkner was not convicted, but I think in some ways, this was a predictable outcome given the Justice Department's bungling of the case," said Paul G. Cassell, a former Utah federal judge and current professor at the University of Utah's S.J. Quinney College of Law, who is representing the families challenging the DPA.

"The jury, ultimately, said they didn't have a big enough picture here to hold this one guy responsible," Cassell said. "So we're arguing that when you look at the big picture, you see that Boeing as a company was responsible for these crashes and that's where the case needs to be tried — with this broader lens, rather than this narrow focus that the Justice Department presented."

Durkin said there's a strong argument to be made for throwing out the DPA and paving the way for prosecuting other Boeing employees. 

"I don't believe that getting the deferred prosecution agreement thrown out is a reach. That's independent of what happened with the jury [in Forkner's case]," he said. "The issue was they violated the [Crime Victims' Rights Act]. What the government will do about other people, I don't know. It was really a shame they worked this agreement out in stealth, didn't tell the families about it, and gave Boeing corporate executives a pass."

A Boeing spokesperson said the company has no comment on the verdict or the DPA.

--Additional reporting by Katie Buehler. Editing by Kelly Duncan and Michael Watanabe. 

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