The U.S. Court of Appeals for the Ninth Circuit recently reversed the conviction of former Nebraska lawmaker Jeff Fortenberry, making it more complicated for witnesses to cooperate with investigators. This crucial judgment has changed the field for charges under 18 U.S.C. § 1001, introducing an unexpected procedural defense for witnesses and expanding a growing circuit divide.
Transparency is crucial in the political sphere, where agencies are constantly investigating campaign finance violations. Witnesses must be astute to avoid becoming defendants themselves, and should carefully consider the long-term possibilities from the beginning of a case.
This decision resulted from United States v. Fortenberry, in which Fortenberry was alleged to have concealed information regarding foreign campaign donations. Although his alleged false statements were made in Nebraska and Washington, D.C., he was charged in California. This raises questions about the venue for such trials and highlights the importance of witnesses being wary of their exposure to potential venues.
The Ninth Circuit disagreed with the government’s extensive interpretation of venue under 18 USC § 1001. This decision narrows the venue under the statute, while also increasing the divergence amongst Circuit Courts. Several Circuits have declared that the crime location should be identified as the place where the defendant made the statement, dismissing actual effects as irrelevant in determining the trial venue.
This trailblazing ruling has made geography a crucial factor for potential witnesses. An interview in a neighboring jurisdiction may seem cooperative, but could expose the witness to an undesirable trial venue. On the flipside, DOJ attorneys practicing in different Circuits will have to consider their resource allocation and investigation strategies.
While it may take a substantial amount of time to fully understand the implications of this decision, the requirement of a Supreme Court intervention seems all but imminent. In the post-Covid world where remote interviews have become commonplace, this decision adds further complications to the long-standing courtroom dilemma of identifying the proper venue for trials.