USA V. FORTENBERRY, No. 22-50144 (9th Cir. 2023)
Annotate this CaseThe United States Court of Appeals for the Ninth Circuit reversed the conviction of former congressman Jeffrey Fortenberry for making false statements during an investigation into illegal campaign contributions. Fortenberry was interviewed by federal agents in his Nebraska home and his lawyer's office in Washington D.C., who were based in Los Angeles, California, where the alleged illegal contribution activity occurred. He was charged in California, tried, and convicted there. Fortenberry argued that the district court incorrectly denied his motion to dismiss the case because venue was improper in the Central District of California. The district court held that a violation of making a false statement under 18 U.S.C. § 1001(a)(2) occurs not only where the false statement is made, but also where it has an effect on a federal investigation. The Ninth Circuit rejected this interpretation, holding that such an effects-based test for venue in a § 1001 offense has no support in the Constitution, the text of the statute, or historical practice. The court held that the false statement offense is complete when the statement is made, and it does not depend on subsequent events or circumstances, or whether the recipient of the false statement was in fact affected by it in any way. The court reversed Fortenberry's conviction without prejudice to retrial in a proper venue.
Court Description: Criminal Law The panel reversed former congressman Jeffrey Fortenberry’s conviction for making false statements, in violation of 18 U.S.C. § 1001(a)(2), without prejudice to retrial in a proper venue, and remanded.
Federal agents interviewed Fortenberry at his home in Lincoln, Nebraska, and his lawyer’s office in Washington, D.C., in connection with an investigation into illegal campaign contributions made by a foreign national through conduit donors. At the time, Fortenberry was a member of the House of Representatives from Nebraska. The federal agents were based in Los Angeles, California, where the illegal contribution activity was said to have occurred. At the end of the investigation, Fortenberry was charged with making false statements during the interviews in violation of Section 1001, but not with a violation of the federal election laws. He was tried and convicted by a federal jury in Los Angeles.
Fortenberry contended that the district court incorrectly denied his motion to dismiss the case because venue was improper in the Central District of California. The district court determined 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. The panel concluded 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. The panel therefore reversed Fortenberry’s conviction without prejudice to retrial in a proper venue. The panel did not reach Fortenberry’s contention of instructional error.
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