Two counts of fraud against former Boeing 737 Max Chief Technical Pilot Mark Forkner were dismissed by the U.S. District Court for the Northern District of Texas Fort Worth Division on Tuesday. The counts alleged that Forkner “knowingly and with the intent to defraud, made and used a materially false writing, entry, certification, document, record, data plate, label, and electronic communication concerning an aircraft part” in his communications with the FAA and potential customers regarding the aircraft’s maneuvering characteristics augmentation system (MCAS). The argument was successfully made that MCAS, a software-based system designed to automatically provide nose-down trim in some flight conditions, did not meet the legal definition of a “part.”
“Indictment 4, ECF No. 1. Counts One and Two charge Defendant with making false statements ‘concerning an aircraft part, namely MCAS.’ […] The Government agrees that MCAS is software and does not dispute that software is intangible,” Judge Reed O’Connor wrote in his memorandum opinion. “Because MCAS is not an aircraft ‘part’ as defined in 18 U.S.C. § 3l(a)(7), the indictment fails to allege an offense that Defendant violated § 38(a)(1)(C).”
MCAS has been cited as a significant factor in the fatal crashes of two 737 Max aircraft: Ethiopian Airlines Flight 302, which occurred on March 10, 2019, and Lion Air Flight 610 on Oct. 29, 2018. As previously reported by AVweb, Forkner was indicted in October 2021 on a total of six counts of fraud related to his work on the Max. The remaining four counts charge Forkner with wire fraud, alleging that he caused Boeing to send fraudulent invoices to customer airlines. The trial is currently slated to take place in early March.
A copy of Judge O’Connor’s memorandum opinion can be viewed below.