A Ninth Circuit panel signaled support for former Congressman Jeff Fortenberry’s argument that he was improperly tried in Los Angeles for alleged misstatements made in Nebraska and Washington D.C.

“You have a Nebraska citizen elected to represent the people of Nebraska in the House of Representatives who made a misstatement of fact in Nebraska. How ever did that case get tried in Los Angeles?” asked District Court Judge James Donato, who sat by designation on the three-judge panel.

Mr. Fortenberry was tried in the Central District of California for making false statements at his home in Nebraska and later in Washington D.C. relating to his knowledge of alleged improper campaign contributions by a foreign national. The indictment did not allege Mr. Fortenberry intended his alleged false statements to reach the Central District of California. It merely alleged that his statements in Nebraska and Washington D.C. “affect[ed] the Federal Investigation in the [district].”

“The effects can be felt anywhere, which I think leads to a potentially terrible result . . . . Why drag [] these people all across the country to foreign venues, and not just pass [the investigation] off to the district in which the statement was made?” asked Judge Donato.

Judge Gabriel Sanchez raised similar concerns.

“[T]he government can start an investigation and thereby create venue, in essence, almost anywhere,” Judge Sanchez said. “To echo my colleagues’ point, that seems a little troubling for purposes of a constitutional provision.”

BKLW Partner John Littrell and Associate Ryan Fraser moved to dismiss the case at its outset based on improper venue in California, noting that “the government’s attempt to drag Congressman Fortenberry across the country to face a jury of Californians for these alleged offenses represents a gross abuse of power by the Department of Justice.”  The case highlighted an entrenched circuit split on the issue that may need to be resolved by the United States Supreme Court.

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