A year after he got probation, community service and a $25,000 fine for lying to FBI agents investigating foreign campaign contributions, former Rep. Jeff Fortenberry’s case was back in court, this time before a panel of appellate judges homing in on the heart of his appeal: why the case was tried in California.
Fortenberry’s attorney, Kannon Shanmugam, said the convictions could not stand.
“First, venue did not lie in California because the statements at issue were made in in-person interviews in Nebraska and Washington, D.C.,” Shanmugam said.
In March 2022, a federal jury in Los Angeles found the nine-term Nebraska congressman guilty of one count of concealing conduit campaign contributions and two counts of lying to federal agents in an interview at his home in Lincoln and in a follow-up interview he requested in Washington in 2019.
The FBI investigation related to a controversial Nigerian billionaire, Gilbert Chagoury, funneling $30,000 to Fortenberry at a fundraiser in Los Angeles in February 2016 as a reward for his support of a group formed to protect Christians and other religious minorities in the Middle East.
Fortenberry didn’t initially know it, but he later learned about the money and ultimately donated it to charity because it is illegal for U.S. elected officials to accept foreign money.
But it was the false statements that got him charged.
“You had a Nebraska citizen elected to represent the people of Nebraska in the House of Representatives who made a misstatement of fact in Nebraska. However did that case get tried in Los Angeles?” an incredulous Judge James Donato asked Alexander Robbins of the U.S. Attorney’s Office.
Donato asked how that squared with the venue clause in the Sixth Amendment and the county’s long tradition that says you’re tried in the community where you were accused of committing your crime.
Robbins said Fortenberry was charged and tried in California because his false statements were material to the investigation there.
“And the reason that that investigation was in the central district of California was the defendant chose to have a fundraiser in Los Angeles,” he said.
Donato, who appeared unconvinced, said an investigation could be done anywhere. But when it comes to charging and trying a case, why not refer it to the local office where the statement was made.
“Why drag these people all across the country to foreign venues and not just pass it off to the district where the statement was made?” he asked.
Robbins said it wasn’t constitutionally required to try Fortenberry in two jurisdictions. The defense asked to transfer venue to Nebraska and the judge denied it. But they didn’t appeal that ruling, he said.
“The defense is here making a constitutional argument that constitutionally he can’t be prosecuted in the district where the statement was material,” Robbins said.
In an exchange on the other side, Donato asked Shanmugam where he thinks the case should have been tried.
Shanmugam said Nebraska or the District of Columbia, where Fortenberry made the statements at issue.
“This is really an unprecedented prosecution where a member of Congress is being hauled across the country simply because the AUSAs (assistant U.S. attorneys) and the agents happen to be here,” the defense attorney argued.
At the same time, he conceded if the conversation had been over the phone, they would have jurisdiction to try him on either end of the call.
“But I think what makes this case different is that by its own concession the government recognizes that their theory of venue ultimately depends on the fact that the investigation itself was taking place in California,” Shanmugam said.
Donato said the government was coat-tailing on decisions in the Second, Fourth and Seventh circuits, which looked at an “effects test” to determine whether the false statement was capable of affecting a decision-maker in another state.
He said he was concerned about that, because “the effects can be felt anywhere, which I think leads to a potentially terrible result.”
Shanmugam said under that theory the government could make a calculated decision that the most government-friendly juries in the country are in North Dakota and put that jurisdiction in charge of investigations in other states.
He said the fundamental problem is the government is trying to turn venue from something about the conduct itself into something about potential effects.
“A man’s life lies in ruins as a result of the government’s decision to prosecute this case and prosecute him in the central district of California,” he said. “And we would submit at a minimum that the congressman is entitled to a new trial.”
The court will make its ruling later.
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