Aaron Sanderford
LINCOLN — Former Nebraska U.S. Rep. Jeff Fortenberry is no longer a convicted felon. But he could face a second trial closer to home or nearer the seat of federal governance.
The 9th U.S. Circuit Court of Appeals reversed Fortenberry’s conviction Tuesday for lying to or misleading FBI agents investigating foreign funds being funneled into congressional campaigns, including Fortenberry’s. Federal law prohibits raising or using foreign funds in congressional races to limit outside influence.
The appeals court, based in California, agreed with Fortenberry’s October appeal that federal prosecutors should have tried his case in one of two districts where his alleged offenses occurred instead of in Los Angeles, where the FBI agents were based and where the original fundraiser in question occurred.
In Fortenberry’s case, the court wrote, that should be in Nebraska or Washington, D.C., where FBI agents interviewed him.
Where crime was committed
The crux of his appeal was that he was not afforded a chance at a trial venue closer to where the alleged crimes occurred.
Federal prosecutors had argued that at least three circuit court decisions had concluded trials can have a proper venue where a crime was committed or where one was “directed.”
The 9th Circuit judges wrote that because the core of the alleged crime was the moment when Fortenberry allegedly lied or misled federal agents, it mattered little where the fundraising occurred or where the federal agents were based.
“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,” the appeals court wrote.
Fortenberry, in a statement, said his family was “gratified by the Ninth Circuit’s decision.”
“Celeste and I would like to thank everyone who has stood by us and supported us with their kindness and friendship,” he said, mentioning his wife.
Foreign campaign funds
California-based FBI agents in 2015 began looking into campaign donations by Lebanese billionaire Gilbert Chagoury. Former U.S. Rep. Lee Terry, R-Neb., and former U.S. Transportation Secretary Ray LaHood were among the other officials whose campaign finances were probed. Terry has said he gave away a $5,200 donation he received after learning about the FBI investigation.
Court documents, testimony, and recordings indicate that Fortenberry denied knowing about the $30,000 in illegal contributions from Chagoury that his campaign collected during a 2016 fundraiser in Los Angeles.
During the trial, prosecutors played a June 2018 recording of Fortenberry speaking with the organizer of the L.A. fundraiser. On it, the organizer, a federal informant, told Fortenberry the $30,000 was likely illegal, that it had been delivered in a paper sack from an associate of Chagoury’s.
Fortenberry denied knowledge of any illegal contributions during an interview with the FBI at his home in March 2019. During a followup interview at his lawyer’s office later in 2019, he also denied any knowledge of the donations being illegal. His attorneys argued that he had misheard, forgot or had a bad connection during the call in which he was told the contributions were illegal.
Fortenberry had been a longtime supporter of the mission of Chagoury’s organization, In Defense of Christians, which works to protect Christians and other religious minorities in the Middle East. Chagoury lives in France.
Could lead to new trial
In March, a California jury convicted Fortenberry of three felonies: two counts of lying to or misleading federal investigators and one count of concealing an illegal campaign donation by failing to report the donation.
Prosecutors had sought a six-month prison sentence. The judge sentenced Fortenberry to two years’ probation, a $25,000 fine and 320 hours of community service. The congressman resigned from office in March 2022. After leaving Congress, he went to work in the private sector in Lincoln.
The ruling chided prosecutors for pursuing a trial in California when Fortenberry faced no federal charge alleged to have occurred in that state. It will be up to federal prosecutors whether to retry the case in a different venue.
“This outlandish outcome cannot be squared with the Constitution,” the court wrote. “The Venue and Vicinage Clauses command that a trial be held where the crime was committed.”
In a statement from spokesman Thom Mrozek, federal prosecutors in Los Angeles said, “The ruling does not preclude a retrial on the charges that then-Congressman Fortenberry made multiple false statements to federal agents. We are evaluating potential next steps before deciding how best to move forward.”