Appeals Court Tosses Fortenberry Conviction

SAN FRANCISCO — A federal appeals court on Tuesday threw out the 2022 conviction of former Rep. Jeff Fortenberry, R-Neb., after concluding federal prosecutors brought the charges in the wrong location.

Fortenberry, who represented Nebraska’s 1st Congressional District from 2005 to 2022, was indicted by a grand jury in October 2021 on three charges of lying to California-based investigators and concealing information about foreign campaign contributions made to his 2016 reelection campaign.

Prosecutors said at the time they believed Fortenberry funneled those contributions through straw donors to circumvent campaign finance laws.

Though Fortenberry was never charged with violating federal election laws, a jury in Los Angeles, California, ultimately did find the congressman guilty of having lied to investigators.

After his conviction, both House Speaker Nancy Pelosi, D-Calif., and House Minority Leader Kevin McCarthy, R-Calif., called on Fortenberry to resign.

He did so in March 2022, three months before he was sentenced to two years’ probation, community service and a fine.

But on Tuesday, the 9th Circuit held that the Constitution requires that a criminal defendant be tried in the place where the alleged criminal conduct occurred.

In this case, Fortenberry was accused of making false statements over the phone while in the District of Columbia and his home state of Nebraska about illegal campaign contributions he received in 2015.

He was tried in Los Angeles, and the prosecutors argued that venue was proper because Fortenberry’s allegedly false statements had an effect on a public-corruption investigation launched in California into the donor.

Writing for the three-judge panel, U.S. District Judge James Donato, who was sitting by designation, said, “The founding generation had a deep and abiding antipathy to letting the government arbitrarily choose a venue in criminal prosecutions.

“Implying an effects-based test for venue … when Congress has not so specified, would allow just that, in derogation of our historical principles,” he continued. “Because a Section 1001 offense is complete at the time the false statement is uttered, and because no actual effect on federal authorities is necessary to sustain a conviction, the location of the crime must be understood to be the place where the defendant makes the statement.

“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,” Donato said. “The Constitution does not permit this.

“The convictions are reversed so that he may be retried, if at all, in a proper venue. The case is remanded for further proceedings that are consistent with this decision,” he added.

Because it found Fortenberry had been tried in the wrong venue, the court did not delve into his other claim, namely that the jury had received improper instructions before beginning its deliberations.

In a statement released after the ruling was announced, Fortenberry said he is gratified by the decision.

“Celeste and I would like to thank everyone who has stood by us and supported us with their kindness and friendship,” he said.

Dan can be reached at [email protected] and @DanMcCue