9th Circuit reverses criminal convictions for Nebraska congressman who was tried in LA
If prosecutors decide to re-try Jeff Fortenberry, the trial must take place in Nebraska or Washington, D.C., because the charged conduct occurred during interviews there.

An appellate panel on Tuesday reversed the criminal convictions that cost Nebraska politician Jeffrey Fortenberry his career in Congress, ruling he shouldn’t have been tried in Los Angeles because his alleged crimes occurred in Nebraska and Washington, D.C.
The 23-page precedent-setting decision from the 9th Circuit U.S. Court of Appeals orders Fortenberry to be “retried, if at all, in a proper venue,” which means federal prosecutors in Los Angeles must decide if they’ll move his case out of the Central District of California to the District of Columbia or District of Nebraska.
Prosecutors argued Fortenberry was properly tried in Los Angeles because his false statements affected an LA-based investigation, but a three-judge panel disagreed.
“The Constitution plainly requires that a criminal defendant be tried in the place where the criminal conduct occurred,” according to the order from U.S. District Judge James Donato, sitting by designation on the 9th from the Northern District of California in San Francisco. “We conclude 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 order cited “the likelihood of highly problematic venue outcomes” and said under prosecutors’ theory, a case could be tried in Hawaii if an investigator moved there for personal reasons.
“This outlandish outcome cannot be squared with the Constitution,” according to Judge Donato’s order, with which 9th Circuit Judges Gabriel P. Sanchez and Salvador Mendoza, Jr. concurred. “The Venue and Vicinage Clauses may not be disregarded simply because it suits the convenience of federal prosecutors.”
The reversal comes 18 months after Fortenberry was sentenced to two years probation by U.S. District Judge Stanley Blumenfeld Jr., avoiding the six-month prison sentence recommended by prosecutors. Before trial, Blumenfeld rejected Fortenberry’s argument that he shouldn’t be tried in Los Angeles.
Fortenberry said Tuesday he and his wife, Celeste, are “ratified 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,” according to a statement released through his lawyers at Bienert Katzman Littrell Williams LLP in San Clemente, California.
The nine-term congressman from Lincoln, Nebraska, resigned from his elected position in the U.S. House of Representatives on March 26, 2022, two days after an LA federal jury convicted him of one count of scheming to falsify and conceal material facts and two counts of making false statements for lying to federal officials.
His election-time criminal trial centered on interviews Fortenberry gave federal agents in 2019 about his knowledge of illegal donations to his reelection campaign that he obtained during a 2016 fundraiser in the Los Angeles suburb of Glendale.
According to trial testimony, federal agents learned of the fundraiser from organizer Elias Ayoub, who was targeted in an investigation called Operation Titan’s Grip that focused on foreign billionaire Gilbert Chagoury so-called titan’s grip on conservative politicians in the United States. Chagoury, who took a deferred prosecution agreement in 2021, had ties to Mitt Romney, the now-retired Utah senator and former U.S. presidential candidate, as well as California U.S. Rep. Darryl Issa, a senior member of the House Committee on Foreign Affairs.
Fortenberry also was a member of the committee, and Chagoury publicly supported him because of his work defending religious minorities overseas and his support for the Chagoury-backed group In Defense of Christians. The group’s founder, Toufic Baaklini, was friends with Fortenberry and arranged the donation without Fortenberry’s knowledge, according to testimony.
Ayoub eventually flipped on Fortenberry and surreptitiously recorded him for the FBI. He called the congressman on June 4, 2018, and told him that the $30,000 he received during the 2016 fundraiser had “probably” come from Chagoury, who owns a home in Beverly Hills but is not a United States citizen. Foreigners aren’t allowed to donate to U.S. election campaigns, so Ayoub and his associates used sham donors to give the money to Fortenberry’s campaign in increments of $1,000, which is the maximum donation allowed.
In the recorded call, Ayoub told Fortenberry that couldn’t happen with another fundraiser, and Fortenbery replied, “No problem.”
Nine months later, two federal agents showed up unannounced at Fortenberry’s home in Linolcon, Nebraska, to question him about Chagoury and the donations.
Here are key clips played in trial:
The March 2019 discussion in Fortenberry’s living room preluded a formal meeting in Washington D.C, in July 2019 in which now-former Republican U.S. Rep. Trey Gowdy of South Carolina acted as Fortenberry’s lawyer.
Gowdy testified as a defense witness for Fortenberry, telling jurors that he wasn’t concerned about the congressman talking to federal authorities because he believed prosecutors were merely trying to determine if Fortenberry could be a witness.
“The congressman wanted to help the FBI,” testified Gowdy, who currently hosts “Sunday Night in America with Trey Gowdy” on Fox News.
Gowdy spent 16 years as an assistant U.S. attorney in South Carolina, but he told the jury he hadn’t been practicing law long when he arranged the meeting with Assistant U.S. Attorney Mack Jenkins, who was the lead prosecutor in Los Angeles.
“I had been in Congress for eight years, and you don’t have to be much of a lawyer to be in Congress,” Gowdy testified.

The interview took place in the Washington, D.C., office of the law firm Nelson Mullins Riley & Scarborough LLP, where Gowdy was a partner. During a break in the interview, Gowdy asked Jenkins if the interview was a set up for a “bullshit 1001,” referring to the federal law criminalizing false statements, but Jenkins said no and Gowdy and Fortenberry returned to the recorded interview.
Her are two clips played in trial:
The Nebraska and D.C. interviews are what led to Fortenberry’s October 2019 criminal indictment, because Fortenberry denied knowing of illegal donations and said he’d be horrified if he had been told of an “in cash” foreign donation, even though the recorded call with Ayoub established that he had bene told and didn’t seem to mind. He also acted in the first interview as if he wasn’t sure who Ayoub was, though he’d had repeat contact with him over the years. Then in the second interview, he said he’d ended the phone call after Ayoub made a “concerning comment,” when in fact he asked Ayoub to arrange another fundraiser.
Returned by jurors after less than three hours of deliberation, Fortenberry’s convictions were a big win for prosecutors, but Judge Blumenfeld went on to reject their recommendation for a six-month prison sentence and instead said Fortenberry deserved only probation because his crimes didn’t involve obstruction of justice. Blumenfeld’s decision sided with Fortenberry’s defense that federal agents had no active investigation into Fortenberry’s campaign donations when they interviewed him.
His character reference letters included one from Mike Foley, then Nebraska’s lieutenant governor and currently the state’s auditor, and one from Democratic California U.S. Rep. Anna Eshoo, who also testified as a defense witness in trial about Fortenberry’s good character and propensity for honesty.

Fortenberry was represented in trial by John Littrell and Ryan Fraser of Bienert Katzman Littrell Williams LLP as well as Glen E. Summers, a partner at Bartlit Beck, LLP, in Denver, Colorado, who is close friends with Republican Texas Sen. Ted Cruz.
His support letters at sentencing included a page letter from his wife that said he and their family “have already been punished severely.”
“Jeff lost his job, his reputation, and many friends. He has suffered public slander about his character extending far beyond the counts of his conviction. He has lost the ability to continue to do good and great things for our nation and for the world—the only reason he ever wanted to be in public office. He can no longer vote. He can no longer hunt, a pastime he long enjoyed with friends and his daughters. Jeff’s federal pension will most likely be taken away—the majority of our retirement savings. We have mortgaged our home, and personally borrowed (and spent) extraordinary sums of money to pay legal bills; and bills are still coming in,” Celeste Fortenberry wrote.




Noted appellate attorney Kannon Shanmugam, the chair of Paul, Weiss, Rifkind, Wharton & Garrison LLP’s appellate practice, joined the defense team for the 9th Circuit appeal, which focused on the argument that Fortenberry should not have been tried in Los Angeles.
“It is the defendant’s continuing conduct—not that of the government—that matters for purposes of venue,” according to the 63-page opening brief filed on Oct. 28, 2022.
The U.S. Attorney’s Office said in a 73-page answering brief that Blumenfeld’s decision that Los Angeles was a proper venue is “consistent with longstanding venue principles, as well as the decisions of three courts of appeals.”

During oral argument on July 11, Shanmugam said Fortenberry’s “life lies in ruins as a result of the government's decision to prosecute this case and to prosecute it in the Central District of California.”
Assistant U.S. Attorney Alexander P. Robbins, deputy chief of the appeals section in the Central District, emphasized that Fortenberry’s conduct effected a Los Angeles investigation. He also emphasized that Fortenberry requested the meeting in Washingotn D.C., but the panel appeared skeptical.
Robbins said the defense argument appears to allow for Los Angles as a venue if an had joined the D.C. and Nebraska interview via speaker phone from Los Angeles.
“But that’s not what happened. He made the statements to an agent in Nebraska. He didn’t cross state lines,” Judge Donato said.
Judge Sanchez said Fortenberry’s case may have more clear ties to Los Angeles than other cases in which prosecutors could use the venue theory to try cases in outlandish places.
Tuesday’s reversal is a blow to the U.S. Attorney’s Office in Los Angeles, in which Fortenberry’s case was a hallmark prosecution for the Public Corruption and Civil Rights Section.
Fortenberry’s indictment on false statement charges stands in contrast to another high-profile corruption investigation involving a sham lawsuit orchestrated for political reasons within the Los Angeles City Attorney’s Office and the Department of Water and Power.
The scandal’s “quarterback attorney,” Paul Paradis, has criticized the U.S. Attorney’s Office for not prosecuting several key players, including Mike Feuer, the former Los Angeles city attorney currently running for the U.S. House of Representatives.
In a revelation confirmed by the judge, Paradis said at his sentencing on Nov. 6 that an FBI agent has said Feuer lied to federal grand jury and should be indicted for making false statements, which hasn’t happened.
At the same time, the U.S. Attorney’s Office underwent a leadership change that elevated public corruption prosecutors. Jenkins, the lead prosecutor on Fortenberry’s case, is now in charge of the criminal divison.
Jenkins took over for Scott Garringer, who led the office during the charging decisions in the DWP scandal.
Links to court documents in Jeff Fortenberry’s district and appellate cases are available below for paid subscribers. Your paid subscriptions make my work possible.