Appeals court tosses former GOP congressman’s felony conviction for lying to the FBI

26 December 2023

Former Rep. Jeff Fortenberry (R-Nebraska) is no longer a convicted felon following a Tuesday afternoon ruling by a 9th Circuit US Circuit Court of Appeals panel.

In a 23-page filing, US District Judge James Donato — the author of the opinion by the 9th Circuit panel — wrote that Fortenberry was improperly tried by a federal jury in Los Angeles, California, when he in fact should have been tried either in his home state of Nebraska or in Washington, DC. Following Tuesday's ruling, Fortenberry will be entitled to a new trial in a different court.

"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 wrote. "Fortenberry’s convictions are reversed so that he may be retried, if at all, in a proper venue."

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The original allegations stem from October of 2015, when the FBI was investigating an unnamed "foreign national" who made approximately $30,000 in contributions to Fortenberry's 2016 reelection campaign at a Los Angeles-based fundraiser. On a recorded call, a cooperating witness told Fortenberry that the bulk of donations likely came from the foreign donor. When the FBI questioned Fortenberry about the funds, he falsely told federal investigators he didn't know the original source of the money.

In late 2021, Fortenberry was charged with one felony count of scheming to falsify and conceal material facts, and two felony counts of making false statements to federal investigators. In March of 2022, he was found guilty on all counts. Fortenberry was ultimately spared prison time and instead sentenced to two years of probation, 320 hours of community service and ordered to pay a $25,000 fine.

In his ruling, Donato wrote that the Department of Justice's decision to try Fortenberry in Los Angeles was "highly problematic" for several reasons.

"An investigation was staffed by agents in California. In connection with the investigation, the agents traveled to Nebraska and Washington, DC to interview Fortenberry, who made false statements in those locations. The only connection between Fortenberry and the Central District of California, where he was tried and convicted, was that the agents worked in a Los Angeles office," Donato wrote. "What if the investigation had been conducted by federal agents in Los Angeles and Oklahoma? What if the government had transferred the investigation to agents in Massachusetts? What if an investigating agent simply moved from Los Angeles to Hawaii for personal reasons but maintained a lead role in prosecuting the case?"

The appellate panel that ruled in Fortenberry's favor is made up entirely of Democratic judicial appointees. Donato was appointed by former President Barack Obama, and the other two 9th Circuit judges — Gabriel P. Sanchez and Salvador Mendoza, Jr. — were both appointed by President Joe Biden.

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