Is Bloomberg law with June Grosjean from Bloomberg radio I've been talking to Mark lytle of Nixon Peabody about the Boeing pilot charged with deceiving U.S. aviation regulators in the first prosecution related to two fatal 7 37 max accidents in 2018 What are the other elements that prosecutors have to prove For example is materiality an element It is Materiality is an element in every broad case and they're going to have to show that but for these false statements things would have been different The FAA would have been different It's really hard to say because all of the statements allegations in the indictment that alleged fortner committed fraud there really about omissions and they're not clear they describe a couple of different interactions that forkner had had with the FAA after he learned about the mcas problems where he didn't disclose it And there's going to be like what is on his mind What is the context of those conversations but it's really rare to charge a case just based on omissions Usually you're looking for affirmative false statements And that makes it omissions make it difficult to prove that somebody had a material fall statement too It makes it more difficult I want to talk about Boeing settlement with the Justice Department which didn't cite for nearby name How will that play or will it play into his case No I haven't been able to review the settlement that much But it's certainly going to play a role I think generally for a defense of an individual to have a company for if you're certainly likely to blame Boeing and the pressures he received internally as he noted in some of his emails that he had pressure to not cost the company money And the defense attorney is going to maybe not legally have a basis to bring Boeing into the matter but it's certainly going to be something that's going to be in the background of the trial about how did someone how did this large company just have one person end up being charged criminally And how did what were the terms of Boeing's admissions that Boeing make any admissions in that settlement there's certainly their payment of money is it fair the defense attorney might raise Is it fair that Boeing doesn't receive criminal charges when a mid level employee does Or what is what looks like it appears to be an institution institutional breakdown So will the jury have to believe that he was a rogue employee who was carrying this out by himself or can they believe others were at fault as well and still find him guilty The jury can believe that others were at fault as well and still find him guilty It just goes to the sense of I think the arguments that the defense attorneys are likely to make are that the jury will appeal to the jury's sense of fairness And a jury can jury can nullify a verdict for any reason Now they get instructions from the court to follow the instructions and apply the elements of each charge to the facts proven at the trial But if the jury gets the sense that there's not fairness here it could really go the wrong way for the government You are a former federal prosecutor Would you rather be the prosecution or the defense Which side do you think has a stronger case Well this would be a tough one because in this case the crashes were so tragic the loss of life unnecessarily occurred and clearly Foraker had knowledge of this problem that could have prevented those crashes But it's clear that many other people knew or should have known about this and the defense are going to make a real big part of this case about the FAA and those FAA agents are going to have to testify a trial and they're going to be scorched on cross examination And it's likely I would think forkner could be convicted even if others weren't charged were involved when I charged in the case But I think that the jury it's going to be tough for the jury to go forward If the defense is able to get into their arguments the fact that foreigners kind of escape go Is there a possible There's always a possibility of a play do you think that the prosecutors might be looking to flip him They might This was a but this was a pretty extensive investigation and when the company entered into the settlement And again I haven't read the terms going settlement It would appear that Boeing did a pretty extensive internal investigation and cooperated with the government Extensively So I would think that I would think that they have all the information that this is probably going to be the only charge coming out of it Really because even Peter di fazio the Democrat from Oregon said senior leaders throughout Boeing are responsible for the culture of concealment that ultimately led to the 7 37 max crashes He's saying this shouldn't be the only indictment I think he's right I think it shouldn't be the only indictment but from reading the fact that Boeing that Boeing was allowed to settle and that Boeing's I would expect Boeing would have done a really thorough internal investigation into their compliance and that they would have done extent to be allowed to settle like this they would have extensively cooperated with the government So my expectation based on my experience the charges that came out now would have been inclusive of all of the people they felt they could make a charge and had a reasonable likelihood of conviction at trial Things could change of course and maybe could provide conversations that weren't recorded in email or something that the government doesn't have So of course that could always happen But I'm surprised it's only four here but I would also be surprised if other people were charged in this case What kind of sentence is he looking at Sentencing guidelines are with fraud cases are triggered and tied to what the loss amount was to the victim of the crime If he gets convicted and there have sentencing the defense and the prosecution are going to have a lot of sparring over weather forkner is accountable for the loss that these airlines suffered as a result of the crashes Their liability to passengers also that Boeing settlement 2.5 billion clearly Boeing is providing that amount and fortunate would argue after convicted that sentencing that he wasn't responsible for these losses He would argue for a much lower sentence than maybe the guidelines Otherwise if it's the whole amount he's going to have very high guidelines probably up to life in prison I don't expect a judge to give him that amount of time I think the judge would probably look at this and find he was a mid level employee But there certainly was a lot of loss of life The number of people who died in these crashes is really horrific So I would expect significant sentence maybe between 5 and ten years Thanks Mark That's Mark lidl of Nixon Peabody.