« How is that consistent with Article Three, Section Two and the seat clause in the Sixth Amendment and our long history of standing trial in the community where you committed your crime? » added Donato, a San Francisco District Court judge appointed by President Barack Obama. « That’s your right under the Constitution. »
However, it was unclear whether Fortenberry could find a second vote on the panel to overturn his conviction and grant him a new trial in Nebraska or Washington or both.
Another appellate judge, Salvador Mendoza, said he believed prosecutors had « sort of a more winning argument » with their assertion that a misrepresentation charge can be made where a statement was expected to have an impact, rather than just where it was pronounced.
The third judge, Gabriel Sanchez, was harder to read. No final decision or ruling was announced on Tuesday. Mendoza and Sanchez are in charge of President Joe Biden.
Fortenberry, a Republican who served nine terms in Congress, resigned in March 2022 after a federal jury in Los Angeles convicted him of three felonies: a plan to deceive the FBI about his knowledge of some campaign donations, making false statements about ‘FBI in an interview at his home in Nebraska and again making false statements to the FBI in another interview in Washington DC
Prosecutors said the lawmaker lied to investigators when he denied knowing that Gilbert Chagoury, a wealthy Lebanese-Nigerian businessman living in France, donated about $30,000 to his campaign through intermediaries at a fundraiser of the 2016 in Glendale, CA.
Fortenberry’s defense argued that he may have been inattentive or had a poor phone connection when the organizer of that fundraiser, Elias Ayoub, told him about the source of the funds in a 2018 phone call. Ayoub’s call was orchestrated and registered by the FBI.
Fortenberry, who did not testify in his own defense, was active in defending persecuted Christians overseas and allegedly came into contact with Ayoub and Chagoury in connection with their work for that cause.
Although Fortenberry resigned under pressure, he received no prison sentence, only two years of probation and a $25,000 fine.
Fortenberry’s appeal attorney Kannon Shanmugam stressed on Tuesday that prosecutors have never charged his client with knowingly accepting so-called conduit contributions or filing false campaign finance reports, only with the alleged false statements to the investigators.
“This is quite unusual. And it’s certainly very unusual in the context of a congressman, » Shanmugam told the judges.
The attorney fighting to preserve Fortenberry’s convictions, Alexander Robbins, was joined at the board table by Mack Jenkins, the prosecutor who led the case against the congressman.
Robbins said it was reasonable to expect Fortenberry’s statements to affect the investigation at the time, which was taking place in Los Angeles, near where the 2016 fundraiser took place. That was enough to bring the case to Los Angeles. Angeles because three federal appellate circuits have adopted a so-called « effects » test, the Justice Department attorney said.
« You have to look at where the statement was material, where it had an effect or was capable of having an effect, » said Robbins.
But Shanmugam repeatedly told justices that the government’s theory allowed for « unlimited » venue in federal criminal cases, authorizing prosecutors to move trial venues simply by moving or sending investigators there and ruling that the effects of alleged lying or deception were now get heard somewhere else.
This resonated with Donato, who seemed alarmed by the government’s stance.
« The effects can be felt everywhere which I think leads to a potentially terrible outcome, not the least of which is, you know, Mr. Fortenberry can afford to have you here and have defense teams and so on, » the judge told Shanmugam, partner of the New York law firm Paul, Weiss, Rifkind, Wharton & Garrison.
« There are a lot of criminal defendants who couldn’t, and I could see the government exploiting the idea that well, you know, you talk to someone in Miami, I know you live in Milwaukee, we’ll get you over there unless you, you know, don’t see it our way by pleading guilty, do something. So, I’m concerned about that. » Donato said. « I’m also concerned about an endless chain of causality that goes from one office to another. … Why drag this, these people into all over the country to foreign headquarters, and not just pass it on to the district where the declaration was made?
Robbins insisted the approach was not « common sense » because it could result in more than one trial having to be held in Fortenberry and other complex cases.
“It is not reasonable that the Constitution provides for two or three different processes for the same conduct. And it doesn’t, » the lawyer said.