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Ninth Circuit:
Nebraskan Improperly Tried in Central District of California
Panel Says District Court Erred in Its View That U.S. Congressman Could Be Tried in Los Angeles Based on Effects of His Lies to Federal Authorities on an Investigation Taking Place Here
By a MetNews Staff Writer
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—AP Then-Rep. Jeff Fortenberry, R-Neb., is seen in 2022 telling reporters he would fight his conviction on charges of lying to federal authorities. The conviction was overturned by the Ninth U.S. Circuit Court of Appeals yesterday based on venue not lying in the Central District of California.
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The Ninth U.S. Circuit Court of Appeals yesterday reversed the conviction in the District Court of a then-member of the U.S. House of Representatives for lying to FBI agents, holding that venue did not lie in the Central District of California even though the false statements had an effect on an investigation being conducted here.
District Court Judge James Donato of the Northern District of California, sitting by designation, authored the opinion which clears the way for former Rep. Jeffrey Fortenberry to be “retried, if at all, in a proper venue.”
Fortenberry was convicted on March 24, 2022 of two counts of violating 18 U.S.C. §1001(a)(2) which proscribes “knowingly and willfully” making “any materially false, fictitious, or fraudulent statement or representation” to federal authorities and one count of violating §1001(a)(1) by falsifying and concealing material facts. He was found to have lied about receiving, through an intermediary, an unlawful $30,000 contribution from a foreign national.
Judge Stanley Blumenfeld Jr. on June 28, 2022, sentenced Fortenberry to two years of probation, 320 hours of community service, and a $25,000 fine. Fortenberry had resigned from Congress on March 31.
Donato’s opinion centered on the two counts of making false statements. He wrote:
“The Constitution plainly requires that a criminal defendant be tried in the place where the criminal conduct occurred. The district court determined, and the government urges on appeal, that a Section 1001 violation occurs not only where a false statement is made but also where it has an effect on a federal investigation. 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.”
District Court Argument
Lane argued in the District Court, in a brief filed Nov. 2, 2021:
“The Framers of the Constitution viewed venue as an important safeguard against the hardship associated with being forced to travel far from home to face criminal charges….[T]hey were concerned about the composition of the jury and its impact on the fairness of the trial. Thus, the Sixth Amendment expressly requires not only that the defendant be tried by an ‘impartial jury,’ but also that the jury comprise only residents of ‘the State and district wherein the crime shall have been committed.’ ”
The brief goes on to say:
“Congressman Fortenberry lives in Lincoln, Nebraska, a small city in Eastern Nebraska approximately 1500 miles from this Court. He splits his time between his home district and Washington, D.C. He has no meaningful connection to California.
“This case concerns two alleged false statements. One was uttered in Nebraska; the other, in Washington, D.C. Neither statement was made in California.
“The government’s attempt to drag Congressman Fortenberry across the country to face a jury of Californians for these alleged offenses represents a gross abuse of power by the Department of Justice.”
District Court’s Denial
On Dec. 29, 2021, Blumenfeld denied the motion, declaring:
“[T]he act of making a materially false statement occurs not only where the statement is made, but also where it is directed….Because Defendant’s allegedly false statements were directed at federal investigative efforts occurring in this district, the Court finds that venue is proper in the Central District of California.”
Donato disagreed.
“The question of venue in this case is answered by determining which of these statutory elements is the essential conduct of a Section 1001 offense, and which is a ‘circumstance element’ that is necessary for a conviction but not a factor in deciding the location of the offense for venue purposes,” Donato wrote, adding:
“The text of the statute plainly identifies the essential conduct of a Section 1001 offense to be the making of a false statement….It is the act of uttering a false statement that is the criminal behavior essential to liability under Section 1001.”
Founding Fathers’ Objective
Agreeing with Fortenberry’s stance, Donato said:
“[H]istory confirms what the Constitution commands. 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 in Section 1001 cases, when Congress has not so specified, would allow just that, in derogation of our historical principles. 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.”
He declared:
“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. The Constitution does not permit this.”
Donato said that, contrary to the view expressed by Fortenberry and Donato, materiality of statements “cannot play a role in determining the locus delicti for purposes of venue.”
The case is United States v. Fortenberry, 22-50144.
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