Former Member of Congress Wins Reversal of Conviction in Ninth Circuit Appeal

In a stunning appellate victory widely covered by national media, Paul, Weiss secured the Ninth Circuit reversal of a criminal conviction against former U.S. Representative Jeff Fortenberry for making false statements to U.S. government agents. The appellate panel unanimously found that the government’s choice of California as the venue for prosecution was unconstitutional because the alleged misconduct took place in Nebraska and Washington, D.C.

Following a March 2022 jury trial in the Central District of California, Fortenberry was convicted for making false statements to the FBI regarding campaign contributions from a foreign national and concealing information about those donations in violation of Section 1001 of the U.S. Code. The government alleged that Fortenberry lied to investigators when he denied knowing that a foreign businessman donated to his campaign through intermediaries at a 2016 fundraiser. Fortenberry resigned from his seat in Congress and was sentenced in June 2022 to two years of probation.

Paul, Weiss was retained to represent Fortenberry in his appeal before the Ninth Circuit. At oral argument in July 2023, we asserted that California was an improper venue for the government’s prosecution and that the trial should have taken place in either Nebraska or D.C., where Fortenberry was interviewed by FBI agents and the statements in question were made.

The government maintained that a venue is proper for trying false statements offenses if those statements have a “potential effect” on a federal investigation in that venue. In this case, since the investigation had been led by the FBI’s Los Angeles field office, California was a proper venue, the prosecution claimed. In response, we asserted that the question of whether a statement could have influenced an investigation is just one element in determining whether a crime has been committed, but that it is not an essential conduct element of a false statements offense and therefore cannot be used to determine venue.

The appellate court agreed with our arguments, rejecting the government’s proposed “effects-based test” on the basis that it “has no support in the Constitution, the text of the statute, or historical practice.”

“The Venue and Vicinage Clauses [of the Constitution] may not be disregarded simply because it suits the convenience of federal prosecutors,” the panel wrote.

The Paul, Weiss team included litigation partner Kannon Shanmugam.