Jeff Fortenberry appeal sees some traction

Former Nebraska Rep. Jeff Fortenberry gained some traction in court Tuesday as he appealed his conviction on charges that he lied to FBI agents investigating alleged foreign donations to his 2016 re-election campaign.

One of three judges on Fortenberry’s case at the 9th Circuit Court of Appeals, James Donato, signaled clear support for the lawmaker’s arguments that the Justice Department violated his rights by insisting on trying him in front of a jury in Los Angeles, rather than in Nebraska or Washington, D.C., where the alleged false statements took place.

“You have a Nebraska citizen elected to represent the people of Nebraska in the House of Representatives who made a misstatement of fact in Nebraska. How ever did that case get tried in Los Angeles?” Donato asked during a 40-minute argument session in Pasadena, Calif.

“How is that consistent with Article Three, Section Two and the venue clause in the Sixth Amendment and our long tradition of you’re tried in the community where you committed your crime?” added Donato, a District Court judge in San Francisco appointed by President Barack Obama. “That is your entitlement under the Constitution.”

However, it was unclear whether Fortenberry could find a second vote on the panel to overturn his conviction and grant him a new trial in either Nebraska or Washington or both.

Another judge on the appeal, Salvador Mendoza, said he believed that prosecutors had “sort of the more winning argument” with their contention that a false statement charge can be filed where a statement was expected to have an impact, rather than only where it was uttered.

The third judge, Gabriel Sanchez, was more difficult to read. No final decision or ruling was announced Tuesday. Mendoza and Sanchez are appointees of President Joe Biden.

Fortenberry, a Republican elected to nine terms in Congress, resigned in March 2022 after a federal jury in Los Angeles convicted him on three felony charges: a scheme to deceive the FBI about his knowledge of certain campaign donations, making false statements to the FBI in an interview at his Nebraska home and making false statements to the FBI again in a separate interview in Washington D.C.

Prosecutors said the lawmaker lied to investigators when he denied knowing that Gilbert Chagoury, a wealthy Lebanese-Nigerian businessman who lives in France, donated about $30,000 to his campaign through intermediaries at a 2016 fundraiser in Glendale, Calif.

Fortenberry’s defense argued that he might have been distracted or had a poor phone connection when the organizer of that fundraiser, Elias Ayoub, told him about the source of the funds in a 2018 phone call. Ayoub’s call was orchestrated and recorded by the FBI.

Fortenberry, who did not testify in his own defense, was active in advocating for Christians facing persecution overseas and allegedly came into contact with Ayoub and Chagoury in connection with their work for that cause.

Although Fortenberry resigned under pressure, he did not receive a jail sentence, only two years probation and a $25,000 fine.

The lawyer handling Fortenberry’s appeal, Kannon Shanmugam, stressed Tuesday that prosecutors never charged his client with knowingly accepting so-called conduit contributions or submitting false campaign finance reports, only with the alleged false statements to investigators.

“That's pretty unusual. And it certainly is very unusual in the context of a member of Congress,” Shanmugam told the judges.

The attorney fighting to preserve Fortenberry’s convictions, Alexander Robbins, was flanked at the counsel table by Mack Jenkins, the prosecutor who led the case against the congressman.

Robbins said it was reasonable to expect Fortenberry’s statements to affect the investigation at the time, which was being run out of Los Angeles, near where the 2016 fundraiser took place. That was sufficient to allow the case to be brought in L.A. because three federal appeals circuits have adopted a so-called “effects” test, the Justice Department attorney said.

“You have to look at where the statement was material, that is where it had an effect or it was capable of having an effect,” Robbins argued.

But Shanmugam repeatedly told the judges that the government’s theory allowed for “limitless” venue in federal criminal cases, empowering prosecutors to shift the location of trials simply by moving or sending the investigators there and declaring that the effects of the alleged lie or deception were now being felt somewhere else.

This resonated with Donato, who seemed alarmed by the government’s position.

“The effects can be felt anywhere, which I think leads to a potentially terrible result, not the least of which is, you know, Mr. Fortenberry can afford to have you here and have defense teams and so on,” the judge said to Shanmugam, a partner at New York-based law firm Paul, Weiss, Rifkind, Wharton & Garrison.

“There are a lot of criminal defendants who couldn't, and I could see the government exploiting the idea that well, you know, you talk to someone in Miami, I know you live in Milwaukee, we're going to make you come down there unless you, you know, see it our way plead guilty, do something. So, I'm worried about that.,” Donato said. “I'm also worried about an endless chain of causation as it gets passed from office to office. … Why drag this, these people all across the country to foreign venues, and not just pass it off to the district in which the statement was made?”

Robbins insisted that approach was not a “common sense” one because it could have resulted in having to hold more than one trial for Fortenberry and in other complex cases.

“It's not reasonable that the Constitution requires two or three different trials for the same conduct. And it doesn't,” the lawyer said.