Appeals court wipes conviction for ex-congressman

by Zach Schonfeld - 12/26/23 2:14 PM ET

A federal appeals court panel wiped ex-Rep. Jeff Fortenberry’s (R-Neb.) conviction of lying to the FBI about an illegal campaign contribution, ruling Tuesday that he was not tried in the proper venue.

Last year, a jury sitting in Los Angeles convicted Fortenberry for false statements he made during interviews in Nebraska and the nation’s capital.

He resigned from his seat in Congress and was sentenced to two years of probation, a $25,000 fine and 320 hours of community service. Tuesday’s decision reverses that sentence, although Fortenberry could still be retried.

“Fortenberry’s trial took place in a state where no charged crime was committed, and before a jury drawn from the vicinage of the federal agencies that investigated the defendant,” wrote U.S. District Judge James Donato, who sat on the appeals court by designation.

“The Constitution does not permit this. Fortenberry’s convictions are reversed so that he may be retried, if at all, in a proper venue,” the 23-page opinion continued.

FILE – U.S. Rep. Jeff Fortenberry, R-Neb., arrives at the federal courthouse for his trial in Los Angeles, Wednesday, March 16, 2022. Just hours after a judge sentences the ex-congressman from Nebraska for lying to federal agents, voters in his district are expected to elect a different conservative Republican to represent the GOP-dominated district. Fortenberry will learn Tuesday, June 28 in a Los Angeles courtroom whether he’ll get prison time for misleading the FBI about $30,000 in illegal, foreign contributions to his campaign. (AP Photo/Jae C. Hong, File)

Authorities charged Fortenberry after interviewing him, as they investigated a $30,200 donation from a Nigerian businessman to the then-congressman’s campaign at a 2016 fundraising event in California.

Federal law prohibits campaign contributions from foreign nationals to any local, state or federally elected official.

But prosecutors did not charge Fortenberry over the contribution itself, instead prosecuting him on two counts of making false statements and one count of scheming to falsify and conceal material facts.

During interviews with the FBI, Fortenberry told investigators that he was unaware of any illegal contributions to his campaign. But court filings indicate the agency had listened into an earlier phone call, in which a cooperating witness told Fortenberry that the Nigerian businessman was likely the source of the $30,200 donation.

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The FBI interviews took place at Fortenberry’s home in Lincoln, Neb., and in his lawyer’s office in Washington, D.C.

The trial judge enabled a jury trial to move forward in California by ruling that false statement violations occur not only where they are uttered, but also where they have an effect on a federal investigation. The donation investigation was run out of the FBI’s Los Angeles field office.

“We conclude that an effects-based test for venue of a Section 1001 offense has no support in the Constitution, the text of the statute, or historical practice,” wrote Donato, who was appointed by former President Obama.

Also on the panel were Circuit Judges Gabriel Sanchez and Salvador Mendoza Jr., who were both appointed by President Biden.

“We are gratified by the Ninth Circuit’s decision. Celeste and I would like to thank everyone who has stood by us and supported us with their kindness and friendship,” Fortenberry said in a statement.

The Hill has reached out to the Justice Department for comment.