Where the government indicts someone affects a host of key elements of a criminal case: How quickly the defense team will obtain key pretrial discovery; the composition of the jury pool; the speed of the trial; and likely outcomes for sentencing. In short, venue matters.
Arguments about venue are not just academic. Last December, the Ninth Circuit Court of Appeals reversed the convictions of former congressmember Jeff Fortenberry because the trial court did not dismiss the indictment for lack of venue. Despite the Department of Justice’s low burden to prove venue, the Fortenberry case is a good reminder to defense counsel to consider challenging it.
The Basics of Venue
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law…” Federal Criminal Rule 18 echoes the same requirement: “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice.”
Because some statutes do not define where a crime is committed, the Supreme Court has explained that “[t]he locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.”[1] Venue is proper only where the acts constituting the offense—the crime’s “essential conduct elements”—took place.[2]
The government must prove that venue is proper in the district of indictment and only by a preponderance of the evidence—not beyond a reasonable doubt. And it’s a question of law for the judge to decide before trial, not a question for the jury.
Defense lawyers should routinely scrutinize indictments, and investigate separately, whether venue is appropriate where DOJ brought the case. If there is a meritorious argument to dismiss the indictment, then that motion should be filed as soon as possible in the case. Rule 12(a)(3) says that improper venue motions “must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.”
The Fortenberry Case
In 2004, Jeffrey Fortenberry was elected to Congress to represent Nebraska’s 1st District. He was a very popular congressmember in his district: winning about 70% of the general election vote in 2014 and 2016, and then about 60% in 2018 and 2020.
In 2015, the Federal Bureau of Investigation began an investigation into whether a foreign national had made illegal contributions to several election campaigns. According to the indictment, the foreign national made illegal “conduit” contributions to Mr. Fortenberry at a fundraiser he held in Los Angeles in 2016.
During the investigation, the FBI interviewed Mr. Fortenberry two times: once in Lincoln, Nebraska (not in California), and once in Washington, DC (also not in California). Mr. Fortenberry was indicted in the Central District of California for allegedly making false or misleading statements during those two interviews. His defense counsel filed a motion to dismiss based on improper venue. He noted that the Ninth Circuit had not addressed where venue is proper in a false statements case, but that the Tenth and Eleventh Circuits had both held that venue was proper where the allegedly false statements were made because they were the “essential elements” of the offense.
The trial court denied the motion, finding that because the government had to prove that the false statements were “material” and because the government’s theory of “materiality” was that they had affected the California-based investigation, venue was proper in California. Here is the entirety of the facts that allowed DOJ to bring the case in California, according to the district court:
The investigation into Defendant’s activities by federal officials in this district arose out of a fundraiser that he conducted in Los Angeles. Defendant was interviewed twice—in Nebraska and Washington, D.C., respectively—about those activities in Los Angeles. And Defendant directed his activities to the Central District of California when he contacted federal investigators in this district to request a second interview.
The case proceeded to trial. A jury convicted Mr. Fortenberry, the court sentenced him to two years of probation, and he resigned his seat in Congress. But Mr. Fortenberry continued to fight the convictions and appealed them to the Ninth Circuit.
The Ninth Circuit Decision
The Ninth Circuit reversed the district court.[3] It explained that the text of Section 1001 “plainly identifies the essential conduct of a Section 1001 offense to be the making of a false statement.” It rejected the government’s argument that materiality is an “essential conduct element” of Section 1001. It also found that DOJ should not have been permitted to prosecute these false statements based on the location of the government action that the statements could potentially influence.
The court of appeals explained that although prosecutors must prove the false statements’ materiality beyond a reasonable doubt, “the inquiry that determines venue is different.” The venue inquiry “turns on the action by the defendant that is essential to the offense, and where that specific action took place.”
In sum, the Ninth Circuit held that “materiality is not an essential conduct element of a Section 1001 violation” and thus the location of the false statement determines venue, not the location that supposedly makes the statement “material.”
Is This the End of the Prosecution of Mr. Fortenberry?
Even though the appellate court reversed his convictions in California, DOJ could indict him again in Nebraska or Washington DC. The statute of limitations is five years. But DOJ will have to move quickly. The Nebraska interview was in March 2019 and the Washington interview as in July 2019, so the respective statues will run in March 2024 and July 2024, respectively.
Practice Tips When Venue Is Questionable
Most white-collar investigations begin long before indictment. Defense counsel should always consider contesting venue during pre-indictment negotiations. This point is particularly salient in public corruption cases where a client may be well-known and well-liked in a particular jurisdiction. (The opposite could also be true; it goes without saying that you shouldn’t challenge venue in a place where your client is more popular than another possible place.) In a case like Mr. Fortenberry’s, though, where a client is popular in a particular place, challenging venue is an essential pretrial strategy.
Challenging venue may be a two-step process: a motion to dismiss for lack of venue and, if that fails, a motion to transfer venue. Even if venue is technically proper in two places, a defendant can move to transfer venue to a different location under Rule 21(b). Under that rule, “the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim, and the witnesses, and in the interest of justice.”
The Supreme Court has established 10-factor test to evaluate venue transfer motions: (1) location of the defendant; (2) location of witnesses; (3) location of events likely to be in issue; (4) location of documents and records; (5) disruption of the defendant’s business; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket conditions in each district; and (10) any other specific element which might affect the transfer.[4]
The trial court—unsurprisingly—denied Mr. Fortenberry’s motion to transfer venue. Still, it was a valid argument to make and defense counsel should make as many meritorious arguments before trial as possible to preserve issues for appeal.
One final note: The Department of Justice’s website contains a lengthy press release from 2021 touting Mr. Fortenberry’s indictment, and a second press release from 2022 about his conviction. Given the reversal of the convictions, DOJ should update this page to reflect that its convictions have been reversed. The fac that DOJ does not update its websites to reflect when convictions have been reversed—or with other information that surely relevant to any reader of their website—remains a travesty of justice that I’ve noted before on this blog.
[1] United States v. Cabrales, 524 U.S. 1, 6-7 (1998)
[2] See United States v. Rodriguez–Moreno, 526 U.S. 275, 280 (1999).
[3] United States v. Fortenberry, 89 F.4th 702 (9th Cir. 2023).
[4] Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964).