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Fortenberry files notice of appeal and claims false statements statutes too easily abused

By: - June 29, 2022 6:43 pm
Fortenberry guilty

U.S. Rep. Jeff Fortenberry, arm in arm with his wife and a daughter, leaves the U.S. District Courthouse in downtown Los Angeles after a jury finds him guilty in March. (Paul Hammel/Nebraska Examiner)

LINCOLN — One day after being sentenced to probation for lying to federal agents, former U.S. Rep. Jeff Fortenberry on Wednesday followed through with his pledge to appeal his conviction.

His legal representatives, including a new specialist in such appeals, also said they expect to file a complaint with the Inspector General of the Department of Justice, alleging that FBI agents used  “deceptive tactics” in getting Fortenberry to talk to them.

Attorney Glen Summers, who also represented Fortenberry during the trial, said in a statement Wednesday that federal false statements statutes are “far too susceptible to abuse” and that the 61-year-old Republican should not have been prosecuted for comments he gave to FBI agents.

Michael Flynn case

Summers cited the case of  Micheal Flynn, former national security adviser to then-President Donald Trump. Flynn had pleaded guilty to making false statements about contacts he had with a Russian ambassador prior to Trump’s election in 2016, but the charges were dropped later by the Department of Justice, which called the FBI’s probe into Flynn “unjustified.”

Fortenberry’s six-page “notice of appeal” was filed Wednesday with the 9th U.S. Circuit Court of Appeals in California.

“We look forward to presenting these issues on appeal and hopefully helping to rein in the weaponization of Section 1001 by federal law enforcement agencies,” Summers said.

Section 1001 of the federal code makes it illegal to make false statements to a federal investigation. The congressman and Flynn were prosecuted under that section.

New lawyers brought on

A Fortenberry spokesman said “one of the nation’s leading appellate lawyers,” Kannon Shanmugam of Paul, Weiss, Rifkind, Wharton & Garrison, along with his colleague Aimee Brown, had been brought in to join Summers for the appeal. The Paul, Weiss firm, according to its website, has over 1,000 lawyers at eight offices worldwide.

The appeal puts on hold the sentence Fortenberry received Tuesday: two years’ probation, a $25,000 fine and 320 hours of community service.

In March, a federal jury in Los Angeles took only two hours to find Fortenberry guilty of  two counts of lying to federal agents and one count of misleading them by failing to correct his federal campaign spending report to reflect the true source of certain political donations.

Fortenberry could have received up to five years in prison on each of the three charges. But U.S. District Judge Stanley Blumenfeld ruled that prison time was not justified and that Fortenberry’s offenses did not compare with recent cases of malfeasance by public officials who did get time behind bars.

Repeated lies

Prosecutors had asked for a sentence of six months in prison, arguing that Fortenberry repeatedly lied about the source of $30,000 in campaign contributions he received in 2016 in Los Angeles. The money came from a Nigerian-Lebanese billionaire, Gilbert Chagoury, making it an illegal, foreign campaign contribution. That fact was related to Fortenberry in a phone call two years after the L.A. fundraiser, but he did not relate that to FBI agents probing the illegal donations in 2019.

Defense attorneys had belittled the case as a failed “memory test” and maintained that Fortenberry’s statements, even if false, weren’t material to the FBI’s broader investigation. Thus, they argued, he should not have been charged.

The appeal also puts a hold on any attempt to disqualify Fortenberry from receiving a federal pension because of the convictions for three felonies.

An official with the National Taxpayers Union Foundation, which has fought to bar pensions for members of Congress convicted of crimes, told the Examiner on Tuesday that no representative convicted of a felony has lost a pension in the past 15 years.

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Paul Hammel
Paul Hammel

Senior Reporter Paul Hammel has covered the Nebraska Legislature and Nebraska state government for decades. He started his career reporting for the Omaha Sun and later, editing the Papillion Times group in suburban Omaha. He joined the Lincoln Journal-Star as a sports enterprise reporter, and then a roving reporter covering southeast Nebraska. In 1990, he was hired by the Omaha World-Herald as a legislative reporter. Later, for 15 years, he roamed the state covering all kinds of news and feature stories. In the past decade, he served as chief of the Lincoln Bureau and enterprise reporter. Paul has won awards for reporting from Great Plains Journalism, the Associated Press, Nebraska Newspaper Association and Suburban Newspapers of America. A native of Ralston, Nebraska, he is vice president of the John G. Neihardt Foundation, a member of the Nebraska Hop Growers and a volunteer caretaker of Irvingdale Park in Lincoln.

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