A skeptical federal appeals court in California asked a lot of questions Tuesday about the decision to try then-U.S. Rep. Jeff Fortenberry in that state instead of Nebraska.
Fortenberry, a Republican, resigned in 2022 after being convicted of making false statements in Lincoln and Washington, D.C., to Los Angeles-based authorities probing illegal campaign contributions. He was sentenced to probation, a $25,000 fine and community service.
He has appealed, alleging that he unfairly faced a jury in bright-blue California, rather than in his really-red home state, or in Washington, D.C., where the statements were made.
“Why drag these people all across the country … and not pass to the district where the statements were made?” asked U.S. District Judge James Donato of a prosecutor.
Prosecutor defends venue decision
Patrick Robbins, who handled the prosecution’s arguments before the 9th U.S. Circuit Court of Appeals, responded that the rules of procedure allow prosecutors to hold a trial where false statements potentially impacted a criminal investigation — in this case, California.
But one of Fortenberry’s attorneys, Kannon Shanmugam, argued that if the three-judge appeals panel accepted the prosecution’s arguments, federal investigators would have “limitless” power to determine where a trial could be held, picking venues most favorable to their case.
“A man’s life lies in ruins because the government decided to try this case, and try it in the central district of California,” Shanmugam said.
Fortenberry’s attorneys are asking the court to throw out his convictions and retry the case in either Nebraska or Washington, or both.
Robbins said that holding two trials doesn’t make “common sense,” and that the U.S Constitution doesn’t provide for two trials for “the same conduct.”
The three judges — Circuit Judge Gabriel Sanchez, a 2021 appointee of President Joe Biden; Circuit Judge Salvador Mendoza Jr., a 2022 Biden appointee; and Donato, a 2014 appointee of President Barack Obama filling in on the appeals panel — took the arguments under advisement after 38 minutes.
It was unclear whether Fortenberry, who had represented Nebraska’s 1st Congressional District since 2005, attended the arguments — he did not appear on a video feed provided of the Pasadena, California, courtroom.
Fortenberry was found guilty in March 2022 of three felonies: two for lying to federal investigators and one for concealing an illegal campaign donation by failed to report it.
The charges grew out of a 2016 fundraiser held by Fortenberry in an L.A. suburb in which the congressman was presented with $30,000 in contributions, purportedly from a group of Lebanese-Americans grateful for his support of Christians being persecuted in the Middle East.
But it was later discovered that the money came from one person, a Lebanese-Nigerian billionaire based in Paris, Gilbert Chagoury. It is illegal for U.S. politicians to accept donations from a foreigner, and also illegal to take contributions funneled through conduits or “straw men.”
In 2015, FBI agents based in Los Angeles launched an investigation of Chagoury and campaign contributions he provided to several U.S. politicians, including former U.S. Secretary of Transportation Ray LaHood and then-U.S. Rep. Lee Terry, R-Neb.
As part of the investigation, they agents made a surprise visit to Fortenberry’s Lincoln home in 2019 and later that year interviewed the congressman — at his request — in Washington, D.C.
By then, Chagoury had reached a settlement of his case, paying a $1.8 million fine, and the host of the L.A. fundraiser, Dr. Elias Ayoub, had long been cooperating with the FBI.
A key piece of evidence at the trial was a tape recording of a phone call between Fortenberry and Ayoub in June 2018, in which Ayoub said at least three times that the $30,000 in donations came from Chagoury, which meant they were illegal. Ayoub said the money had been delivered in a paper bag from an associate of Chagoury who ran an American-based group, “In Defense of Christians.”
Yet, when Fortenberry was questioned in March 2019, he denied knowledge of any illegal donations and was unclear about who Ayoub was.
That led to charges being filed against Fortenberry in late 2021 — charges his attorneys have said were politically motivated by aggressive prosecutors, claims dismissed by the trial judge.
Fortenberry appealed his convictions 10 months ago, arguing that he was incorrectly tried in Los Angeles and that his statements weren’t “material” to the investigation into illegal campaign contributions.
During his arguments, Shanmugam pointed out that Fortenberry was never charged with violation of campaign finance laws, but only for making false statements — statements that were made not in California, but in Nebraska and Washington.
Judge Donato asked if Fortenberry was asking for two trials. “How are you going to work that out?”
Fortenberry’s lawyer said that’s up to the prosecutors to work out and that the two counts could be tried together, just not in California.
“The appropriate remedy at this point would be a new trial,” Shanmugam said.
Robbins said that Fortenberry’s lawyers were mistaken in their interpretation of the law and past court decisions. The determining factor for a trial venue is where the statements had a potential impact on an investigation, and in this case, he said, that was California.
He said that under the defense’s theory, an FBI agent could be on vacation in Wyoming, could receive some information there, and the venue would be Wyoming.
“It’s where the statement has an effect. And that’s not going to be in Wyoming,” Robbins said.
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