U.S. judge dismisses two charges against former Boeing 737 MAX technical pilot

A U.S. judge on Tuesday dismissed two charges against a former chief technical pilot for Boeing Co accused of deceiving federal regulators evaluating the company’s 737 MAX jet, but rejected a request to dismiss the other four counts.

U.S. District Judge Reed O’Connor in Texas granted part of the request of lawyers for former Boeing technical pilot Mark Forkner, dismissing two fraud counts alleging Forkner made materially false communications concerning a key airplane software feature called Maneuvering Characteristics Augmentation System (MCAS).

MCAS is a software feature designed to automatically push the airplane’s nose down in certain conditions. It was tied to the two 737 MAX crashes over a five-month period in 2018 and 2019 that killed 346 people and led to the Federal Aviation Administration (FAA) grounding the plane for 20 months, an action lifted in November 2020.

O’Connor ruled Tuesday the two charges could not proceed because they must involve a tangible airplane part — rather than the MCAS software feature.

“MCAS is intangible computer code in the aircraft’s flight control software,” O’Connor wrote. “MCAS is not an ‘aircraft part.’”

O’Connor rejected a request to dismiss the other four counts which allege wire fraud. Forkner was indicted in October on charges of scheming to defraud Boeing’s U.S.-based airline customers to obtain tens of millions of dollars for Boeing.

The case is currently set for trial in early March.

In January 2021, Boeing agreed to a $2.5 billion deferred prosecution agreement with the Justice Department over the MAX crashes, which cost Boeing more than $20 billion.

The Justice Department said on Tuesday in a separate filing that it has not charged Forkner “with causing the crashes of Lion Air Flight 610 or Ethiopian Airlines Flight 302 and that it does not intend to argue that he caused them.”