After Fortenberry, where do false statement prosecutions go?

Former U.S. Congressman Jeffrey Fortenberry was convicted in the U.S. District Court for the Central District of California for making false statements to federal investigators (18 U.S.C. § 1001), regarding illegal campaign contributions made by a foreign national through conduit donors. These statements were allegedly made during interviews conducted in-person in Nebraska and Washington, D.C. However, the trial was held in Los Angelesbecause the government argued, and the court held that the appropriate venue for a false statement charge is not just where the false statement was uttered, but also where the false statement has an "effect" on a federal investigation. According to federal prosecutors, Fortenberry had conducted a fundraiser through which the alleged conduit contributions were made to his campaign, and he knew that Los Angeles-based federal prosecutors were conducting his interview.

The Ninth Circuit disagreed, holding instead that because the alleged false statements were made outside the geographical boundaries of the Central District of California, the conviction was invalid and must be vacated. The Ninth Circuit, after analyzing the historical importance of the venue clause of the U.S. Constitution (U.S. Const. art. III, § 2, cl. 3), applied a simple bright-line rule holding that the only appropriate venue for prosecuting an allegation of making a false statement is where the interview takes place and the false statement is uttered. The rationale for the holding was that the act of making a false statement, rather than the subsequent effects of that statement, is the essential conduct of the offense.

The appellate court flatly rejected the government's argument that the materiality of the false statement (i.e., how a listener perceives the false statement) is an essential conduct element. Rejecting the government's alternative theory, the Court held that the false statement could not be considered a "continuing offense" under 18 U.S.C. § 3237(a), which would have otherwise allowed the effect of the statement to be considered as part of the venue analysis. Instead, the Court held that the offense is complete when the statement is made and does not depend on subsequent events or circumstances.

The Fortenberry opinion intensifies the significance of the current circuit split; while the Ninth Circuit has aligned itself with the Tenth and Eleventh Circuits, the Second and Fourth Circuits have instead given federal prosecutors wide latitude in determining where a false statement charge could be prosecuted. Setting aside the competing academic rationales for concluding the appropriate venue for a false statement charge, the practical impact of the circuit split widened by Fortenberry is only beginning to be felt. As an initial matter, Fortenberry has an outsized impact upon the development of the law because the Ninth Circuit is, by far, the largest of the 12 regional circuits, and receives more than 20% of all of appeals filed in federal court.

Substantively, Fortenberry will likely have a lasting lineage as the opinion employs considerably broad language in limiting the scope of proper venue in cases where the charged crime is technically a standalone offense but is almost always tied to an investigation of a greater crime. Indeed, defense attorneys have, and will likely continue to rely on this language to bring Constitutional venue challenges in a broad array of criminal charges, not limiting themselves to the false statements offense but challenging the venue in all manner of other criminal cases ranging from fraud to computer crime and everything in between. In United States v. Gessen, a defendant in a murder-for-hire case argued that venue in the Northern District of California was improper because he had only allegedly sent the payment to a bank account that happened to be located in San Francisco, and communicated with a San Francisco-based FBI agent. The defendant argued that because he physically met with undercover agents in New York and allegedly facilitated the scheme there, proper venue was in New York. 2024 WL 171361 (N.D. Cal. Jan. 16, 2024). While the defendant's argument in Gessen was unsuccessful before the trial court, in United States v. Hoy, a Texas federal district court entertained the idea that Fortenberry could have some bearing on the analysis as to where a federal conspiracy trial is properly conducted. 2024 WL 128219 (E.D. Tex. Jan. 10, 2024). The district court in Hoy was careful to draw the distinguishing lines between a false statement charge and a conspiracy charge, but acknowledged the analysis set forth in Fortenberry and concluded that further evidence "about the scope and object of the conspiracy, its purported members, and the overt acts allegedly committed" was necessary to determine whether venue was proper in that district. The cases illustrate the new doors and questions that Fortenberry has left open and unanswered, respectively.

The strategic implications of the decision are such that now prosecutors and (perhaps more importantly) interviewees may have the opportunity to negotiate a "middle ground" situs where a law enforcement interview is conducted. Even though the Court in Fortenberry emphasized the apparent arbitrariness of holding a trial away from the location of the interview, there will ironically be instances of even greater arbitrariness in future cases, albeit in the context of where the interview takes place. Far-flung interviews --which are often a mainstay of white-collar investigations -- may now result in limited options for districts in which a false statement case is brought. Moreover, Fortenberry leaves open to interpretation the question of where the appropriate venue lies when the interviewee is being questioned remotely; Fortenberry concerned in-person interviews, where both subject and interviewers were in the same room. If Fortenberry is to be read as placing the appropriate venue at the location of the interviewee at the time of the uttered statement, that could operate as a substantial limitation on the willingness of prosecutors to permit remote interviews since interviewees could use that as an opportunity to sit in a favorable jurisdiction during the interview.

Ultimately, it may be up to the Supreme Court to determine whether to resolve the emerging and intensifying circuit split. Unless and until the Supreme Court answers this fundamental Constitutional question, we may continue to see venue challenges increasing across the country, which will only raise the stakes as criminal defendants are prosecuted under different venue rules, and convictions under one of the two venue interpretations may be called into question by a future Supreme Court decision.